Children’s Health Defense (CHD) is weighing next steps after an appeals court late Monday ruled against CHD and Robert F. Kennedy Jr. in their landmark censorship case against the Biden administration.
The 5th Circuit U.S. Court of Appeals ruled the plaintiffs — CHD, Kennedy and news consumer Connie Sampognaro — have no legal basis to sue the Biden administration for pressuring tech giants to censor their social media posts.
Monday’s ruling overturned a lower court decision, made in August by Judge Terry Doughty from the U.S. District Court for the Western District of Louisiana, who ruled the plaintiffs do have standing to sue the administration.
Standing is the legal doctrine requiring plaintiffs to show they’ve suffered direct and concrete injuries and that those injuries could be redressed in court in order to sue.
The lawsuit, Kennedy v. Biden — filed in March 2023 — alleges top government officials and federal agencies “waged a systematic, concerted campaign” to compel the nation’s three largest social media companies to censor their constitutionally protected speech.
“We are, of course, disappointed with and disagree with the 5th Circuit’s decision here,” CHD General Counsel Kim Mack Rosenberg told The Defender.
Mack Rosenberg added:
“We believe that the additional evidence CHD presented more than sufficiently established standing for Children’s Health Defense. We pointed the court to ongoing censorship activities by the government and we demonstrated that the government has a significant and improper role in the social media platforms’ censorship of CHD.”
Mack Rosenberg said that plaintiffs are weighing the next steps.
Censorship lawsuits against Biden administration continue to drag on
The decision marks the latest major development in the ongoing anti-censorship litigation against the Biden administration.
Two separate cases — Murthy v. Missouri (originally Missouri v. Biden) and Kennedy v. Biden were filed in May 2022 and March 2023 respectively against the Biden administration in Louisiana District Court.
The cases have different plaintiffs but make similar allegations: that the administration colluded with social media companies to censor plaintiffs’ speech.
Both cases cited the disclosures of secret communications between social media companies and federal officials — in the “Twitter Files,” other lawsuits and news reports — revealing threats by President Joe Biden and other top officials against social media companies if they failed to aggressively censor content that ran counter to official narratives, including those on COVID-19 origins and vaccines.
Doughty consolidated the two cases, allowing them to share processes, such as discovery of evidence. However, the courts continued to hear and rule on the cases separately.
Plaintiffs in Missouri v. Biden sought and won a preliminary injunction in the lower court to prevent the Biden administration from pressuring social media companies to censor certain content. The administration appealed in July 2023 and in June 2024, the U.S. Supreme Court struck down the injunction.
The Supreme Court ruled the plaintiffs lacked standing because there was insufficient evidence they were directly injured by the government’s actions.
The Louisiana District Court later granted a preliminary injunction in the Kennedy v. Biden case; however, the court simultaneously issued a stay pending the Supreme Court’s decision on the injunction in Missouri v. Biden.
After the Supreme Court struck down the injunction in Missouri v. Biden, the 5th Circuit sent the Kennedy v. Biden case back to the District Court to rule on standing, where plaintiffs presented supplementary evidence.
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The Kennedy v. Biden plaintiffs argued they had a stronger case for standing than the plaintiffs in Missouri v. Biden because there is explicit evidence that both Kennedy and CHD were specific targets of censorship and that they continue to be censored.
In a declaration by CHD President Mary Holland, Holland said CHD was deplatformed from Facebook and YouTube in August and September 2021 and continues to be deplatformed from major social media sites to this day.
Doughty found the government’s conduct is traceable to direct statements and instructions to social media platforms, including Facebook, Instagram and YouTube. He said Kennedy and CHD showed they faced ongoing injuries that could be redressed by the court.
In October, a three-judge panel in the 5th Circuit heard oral arguments in the Kennedy v. Biden case.
In its ruling late yesterday, the 5th Circuit disagreed with Doughty and concluded CHD, Kennedy and Sampognaro lacked standing for the same reasons the Supreme Court found the Missouri v. Biden plaintiffs lacked standing.
The court didn’t deny that pressure to censor and subsequent censorship of Kennedy and CHD had happened. Instead, it said the meetings between the government and social media companies had stopped in 2022.
Even if pressure exerted at that time led to the platforms censoring CHD, the organization could not tie ongoing censorship to government action, the court ruled. Therefore, plaintiffs have a “redressability problem,” and don’t have standing, it concluded.
Kennedy’s campaign Chief of Staff Brigid Rasmussen also described a series of content moderation actions taken by social media platforms against the Kennedy campaign.
The court ruled that Kennedy’s argument that he would be subjected to future censorship is speculative — and even more speculative now that his presidential campaign is suspended — and that he also therefore lacks standing.
The 5th Circuit’s decision voided the preliminary injunction and sent the case back again to the District Court.
The Defender on occasion posts content related to Children’s Health Defense’s nonprofit mission that features Mr. Kennedy’s views on the issues CHD and The Defender regularly cover. Mr. Kennedy, an independent candidate for president of the U.S., is on leave from CHD. In keeping with Federal Election Commission rules, this content does not represent an endorsement of Mr. Kennedy’s candidacy or his support for President Donald Trump’s campaign.
