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Robert F. Kennedy, Jr. and Children’s Health Defense (CHD) on Friday filed a class action lawsuit against President Biden, Dr. Anthony Fauci and other top administration officials and federal agencies, alleging they “waged a systematic, concerted campaign” to compel the nation’s three largest social media companies to censor constitutionally protected speech.
Kennedy, CHD and Connie Sampognaro filed the complaint in the U.S. District Court for the Western District of Louisiana, Monroe Division, on behalf of all the more than 80% of Americans who access news from online news aggregators and social media companies, principally Facebook, YouTube and Twitter.
The plaintiffs allege top-ranking government officials, along with an “ever-growing army of federal officers, at every level of the government” from the White House to the FBI, the CIA and the U.S. Department of Homeland Security (DHS) to lesser-well-known federal agencies induced those companies:
“to stifle viewpoints that the government disfavors, to suppress facts that the government does not want the public to hear, and to silence specific speakers — in every case critics of federal policy — whom the government has targeted by name.”
Kennedy, chairman and chief litigation counsel of CHD, said American Democracy itself is at stake in this case:
“U.S. Supreme Court Justice Potter Stewart said, ‘Censorship reflects a society’s lack of confidence in itself. It is a hallmark of an authoritarian regime.’ It also violates the Constitution.
“The collaboration between the White House and health and intelligence agency bureaucrats to silence criticism of presidential policies is an assault on the most fundamental foundation stone of American Democracy.”
The lawsuit’s argument rests on the Norwood Principle, an “axiomatic,” or self-evident, principle of constitutional law that says the government “may not induce, encourage, or promote private persons to accomplish what it is constitutionally forbidden to accomplish.”
According to the plaintiffs, the U.S. government used the social media companies as a proxy to illegally censor free speech.
The complaint cites the now-weekly, ongoing disclosures of secret communications between social media companies and federal officials — in the “Twitter files,” other lawsuits and news reports — which revealed threats by Biden and other top officials against social media companies if they failed to aggressively censor.
The suit points to examples where the censorship campaign allegedly trampled First Amendment freedoms, such as the Hunter Biden laptop story, the COVID-19 Wuhan lab-leak theory and the suppression of facts and opinions about the COVID-19 vaccines.
The plaintiffs do not seek financial damages. Instead, they seek a declaration that these practices by federal agents violate the First Amendment and a nationwide injunction against the federal government’s effort to censor constitutionally protected online speech.
The complaint points to a Supreme Court decision that said social media platforms are “the modern public square” and argues that all Americans who access news online have a First Amendment right against censorship of protected speech in that public square.
Jed Rubenfeld, one of the attorneys arguing the case filed Friday, explained why the lawsuit was filed as a class action:
“Social media platforms are the modern public square. For years, the government has been pressuring, promoting, and inducing the companies that control that square to impose the same kind of censorship that the First Amendment prohibits.
“This lawsuit challenges that censorship campaign, and we hope to bring it to an end. The real victim is the public, which is why we’ve brought this suit as a class action on behalf of everyone who accesses news from social media.”
According to the complaint, when the administration violates the First Amendment of an entire class of people, the judiciary must step in to protect Americans’ constitutional rights:
“Apart from the Judiciary, no branch of our Government, and no other institution, can stop the current Administration’s systematic efforts to suppress speech through the conduit of social-media companies.
“Congress can’t, the Executive won’t, and States lack the power to do so. The fate of American free speech, as it has so often before, lies once again in the hands of the courts.”
The lawsuit also names Surgeon General Dr. Vivek H. Murthy, U.S. Department of Health and Human Services Secretary Xavier Becerra, the National Institute of Allergy and Infectious Diseases, the Centers for Disease Control and Prevention (CDC), the U.S. Census Bureau, the U.S. Department of Commerce, DHS, the Cybersecurity and Infrastructure Security Agency (CISA), and other individuals and agencies — 106 defendants in total.
‘The largest federally sanctioned censorship operation’ ever seen
According to the lawsuit, efforts by federal officials to induce social media platforms to censor speech began in 2020 with the suppression of the COVID-19 lab leak theory and reporting on Hunter Biden’s laptop.
Once President Biden took office in January 2021, senior White House officials reported the Biden team began “direct engagement” with social media companies to “clamp down” on speech the White House disfavored, which officials called “misinformation.”
Revelations would later prove the administration was asking social media companies to suppress not only putatively false speech but also speech it knew to be “wholly accurate” along with expressions of opinion.
This practice, it alleges, spread from the administration and through the entire government, becoming “a government-wide campaign to achieve through the intermediation of social media companies exactly the kind of content-based and viewpoint-based censorship of dissident political speech that the First Amendment prohibits.”
Similar allegations about this massive federal censorship campaign also so were alleged by the plaintiffs in the Missouri. v. Biden case, but this case introduces many new allegations.
Some, but not all, examples of government-coordinated suppression of free speech on social media cited in the complaint include the following:
- Substantial evidence of coordinated efforts by Fauci and others to suppress the lab-leak theory, which remains plausible and supported by evidence.
- Extensive email communication between Fauci and Mark Zuckerberg, Facebook CEO, demonstrating Facebook and other social media companies adopted policies that identified any claims about the lab-leak hypothesis to be “false” and “debunked.”
- Facebook’s admission that its censorship of COVID-19-related speech, on supposed grounds of falsity, is based on what “public health experts have advised us.”
- Public statements by Zuckerberg on Joe Rogan’s podcast that Facebook suppressed the Hunter Biden laptop story as a result of communications from the FBI.
- Extensive public commentary by FBI Special Agent Elvis Chan about his work with social media companies and CISA to discuss suppression of election-related speech on social media.
- “Twitter files” documents on Twitter’s suppression of the Hunter Biden laptop story.
- “Twitter files” documents demonstrating weekly meetings between agents from the FBI’s 80-agent social media task force and Twitter to discuss content suppression along with direct payments from the FBI to Twitter for compliance with requests.
- CISA’s work with the Center for Internet Security, a third-party group, to flag content, including particular individuals, for censorship on social media.
- “Twitter files” evidence about the Election Integrity Partnership (EIP), a vast network of high-level interactions with the federal government and social media platforms — which included proposals, ultimately adopted, for the U.S. government to establish its own “disinformation” board. One free-speech advocate described the EIP as “the largest federally-sanctioned censorship operation” he had ever seen.
- Documents demonstrating after the election, the EIP was transformed into the “Virality Project,” which was dedicated to “take action even against ‘stories of true vaccine side effects’ and ‘true posts which could fuel hesitancy.’”
- Threats by congressional representatives, senators and Biden to break up Big Tech if they did not improve censorship practices.
- Census Bureau documents describing work by its “Trust & Safety” team with social media platforms to “counter false information.”
- “Twitter files” documents, news reports, and documents received through Freedom of Information Act requests that demonstrated myriad, consistent communications with Facebook, Twitter and Google (YouTube) and numerous Biden administration officials named as defendants in the lawsuit including Murthy, former White House Press Secretary Jen Psaki, officials from the CDC, DHS, the U.S. Food and Drug Administration, CISA, the U.S. State Department, the White House — including White House Counsel — and other agencies about how to take action against “misinformation” related to COVID-19.
This last set of communications included action against the so-called “Disinformation Dozen,” which includes Kennedy. According to the complaint, “Facebook itself has stated that the infamous ‘disinformation dozen’ claim has no factual support.”
Kennedy tweeted some of the evidence that the White House directly censored him:
Here are the emails that show the White House colluded with Twitter to censor my tweets.https://t.co/6xD9MvfwLe
— Robert F. Kennedy Jr (@RobertKennedyJr) January 9, 2023
The complaint alleges that the collusion between the administration, federal agencies and social media companies to suppress constitutionally protected free speech now also extends beyond the election and COVID-19-related commentary to include suppression of speech on topics such as climate change, “clean energy,” “gendered disinformation,” pro-life pregnancy resource centers and other topics.
It also alleges, based on research from the Media Research Center that identified hundreds of instances of censored critiques of Biden, that social media companies “have achieved astonishing success in muzzling public criticism of Joe Biden.”
It argues that the defendants’ power over social media gives them a “historically unprecedented power over public discourse in America — a power to control what hundreds of millions of people in this county can say, see, and hear.”
CHD President Mary Holland, who also serves as CHD general counsel, told The Defender:
“If Government can censor its critics, there is no atrocity it cannot commit. The public has been deprived of truthful, life-and-death information over the last three years. This lawsuit aims to have government censorship end, as it must, because it is unlawful under our constitution.”
The lawsuit asks the court to permanently enjoin them from, “taking any steps to demand, urge, pressure, or otherwise induce any social-media platform to censor, suppress, de-platform, suspend, shadow-ban, de-boost, restrict access to constitutionally protected speech, or take any other adverse action against any speaker, protected content or viewpoint expressed on social media.”