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Attorneys for Children’s Health Defense (CHD) on Tuesday filed a series of briefs pertaining to CHD’s ongoing lawsuit against the Trusted News Initiative (TNI) whose members include The Washington Post, The Associated Press (AP), Reuters and the BBC.
The lawsuit, CHD v. The Washington Post, alleges the media giants illegally colluded to suppress competition by getting the world’s largest internet platforms — including Google, Facebook, Twitter and Microsoft — to censor online news outlets for publishing “misinformation.”
Additional plaintiffs in the suit include Trialsite Inc., Creative Destruction Media LLC, Erin Elizabeth Finn, Jim Hoft, Dr. Ben Tapper, Ben Swann, Dr. Joseph Mercola, Ty Bollinger, Charlene Bollinger and Jeff Crouere.
“After we filed our lawsuit back in May, the defendants filed several different motions trying to stop the case from proceeding,” said Jed Rubenfeld, lead litigator for the case. “This week, we filed briefs opposing their motions, and we’re hopeful that we will win every one of them.”
Rubenfeld also is a professor at Yale Law School and the author of “Freedom and Time: A Theory of Constitutional Self-Government” and “Revolution by Judiciary: The Structure of American Constitutional Law.”
He told The Defender if CHD’s lawsuit succeeds, the defendants “will owe triple damages to every online news publisher in the country the TNI censored and injured.”
Scott J. Street, who also represents the plaintiffs, told The Defender:
“This case is an important part of the global fight against censorship, which may represent the greatest threat to freedom this century. We look forward to moving this case forward and to getting our day in court.”
Commenting on the Aug. 15 filings, Kim Mack Rosenberg, CHD acting general counsel, said the plaintiffs “vigorously opposed” all of the defendants’ motions — including motions alleging that plaintiffs failed to state actionable claims, a motion by the BBC that the court could not exercise jurisdiction over it, and a motion by the defendants to move the case to another federal district court.
A “robust body of case law” supports the plaintiffs’ claims, Rosenberg said, including plaintiffs’ right to have the case heard in the Western District of Louisiana.
CHD’s lawsuit against TNI will be heard in the U.S. District Court for the Western District of Louisiana Monroe Division before Chief Judge Terry Doughty.
Doughty also is presiding over other key free speech cases, including CHD’s class action lawsuit against the Biden administration alleging key government officials colluded with social media to censor posts that countered the official government narrative on COVID-19-related policies.
A hearing has yet to be scheduled in the TNI case. The plaintiffs have demanded a jury trial.
‘Online news censorship cartel’ violates antitrust law
CHD responded to the defendants’ attempt to dismiss the lawsuit by explaining that the TNI violated national antitrust law and constitutionally ensured freedom of speech.
The plaintiffs said:
“The TNI was deliberately created by Defendants to suppress what they themselves called their ‘real competition’ — online news publishers representing an ‘existential threat’ to the business model of legacy news organizations.”
In early 2020, some of the world’s most prominent “legacy news organizations” — news outlets that originated in print or broadcasting — formed the TNI, calling it a “groundbreaking” and “unique” partnership that joined media outlets with Big Tech platforms to “tackle harmful disinformation.”
The TNI resulted in collusive censorship and economic devastation of non-mainstream online new publishers, such as CHD and Dr. Mercola, also a plaintiff in the suit.
Rubenfeld called TNI an “online news censorship cartel” and pointed out that what it does is “categorically illegal.”
“Antitrust law has a name for this kind of ‘industry partnership’: It’s called a group boycott,” Rubenfeld said. “If online news publishers engage in reporting [that] the TNI prohibits, they are censored — shadow-banned, blocked, de-boosted or terminated — by the TNI’s Big Tech members.”
The plaintiffs said they “all suffered denials of access to the world’s largest internet platforms, causing damages ranging from tens of thousands to tens of millions of dollars.”
‘Freedom to speak matters because speech is the beginning of thought’
According to Rubenfeld, the TNI claims to censor only “misinformation,” but it has censored “accurate, wholly legitimate reporting, such as reporting on the lab-leak theory of COVID’s origins, or on the Hunter Biden laptop story — so it’s a threat not only to free market competition in online news, but to the freedom of speech itself.”
Rubenfeld pointed out that the U.S. Supreme Court nearly 80 years ago decided a similar case also involving the AP. He said:
“The court held that the antitrust laws apply fully to the news industry and are intended to ensure ‘the widest possible dissemination of information from diverse and antagonistic sources … Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not.’”
Street agreed, adding, “The freedom to speak matters because speech is the beginning of thought.”
Historically, the media generally recognized that and “provided fertile ground for debate on matters of public concern,” Street said.
“News companies competed to provide the most compelling source for news and analysis, especially criticism of official government narratives,” Street said.
“Now,” he added, “the world’s biggest media companies are colluding to promote government orthodoxy and to prevent the government’s critics from spreading their message, something we believe violates America’s anti-trust laws.”
The defendants also requested the case — if taken up at all — be transferred to a court in New York or Washington, D.C.
However, the plaintiffs asked the court to deny the request, noting that such a transfer would be “unlawful under Supreme Court precedent” and that the defendants “have not demonstrated that transfer would be clearly more convenient.”
BBC tries to say Lousiana court doesn’t have jurisdiction over it
Additionally, the BBC motioned to dismiss the lawsuit for lack of “personal jurisdiction” as the corporation is based in the U.K. and has few contacts in Louisana, where the case is being heard.
However, the plaintiffs argued, personal jurisdiction in antitrust cases is based on national contacts — not state contacts.
“While the BBC disputes its Louisiana contacts,” they said, “it does not and cannot dispute its more-than-minimum contacts with the U.S. as a whole.”
The plaintiffs said:
“In addition to the delivery of its news and media content to millions of consumers all over America, … the BBC — according to its own declaration in this case — maintains a bureau in Washington, DC, has 150 employees residing in the U.S., and although a foreign corporation, has even incorporated in Washington, DC. …
“Accordingly, at the very least a prima facie case of minimum contacts with the United States exists here.”
And the plaintiffs said that “only a prima facie case of personal jurisdiction” was needed to defeat the BBC’s motion.
Additionally, the plaintiffs filed a motion for jurisdictional discovery of the BBC. In a memo supporting the motion, they wrote, “Courts grant requests for jurisdictional discovery when a foreign defendant is a key player in an anti-competitive conspiracy” — and the BBC has played a major role in the TNI, they said.
The plaintiffs also wrote:
“According to Mr. [Jonathan] Munro [BCC’s journalism director and the deputy CEO of BBC News] the BBC was a ‘founding partner and leader of the’ TNI; employs (or employed) people ‘who have been involved with running the TNI’; has ‘documents concerning the TNI that are within the BBC’s possession … in the United Kingdom’; and has hosted four annual summits about the TNI’s work.”
