A federal appeals court on Thursday declined to rule on a preliminary injunction that would prohibit the Biden administration from pressuring tech giants to censor social media posts, ruling instead that the lower court must first decide whether the plaintiffs — including Children’s Health Defense (CHD) and Robert F. Kennedy Jr. — have legal standing to sue the administration.
The 5th Circuit U.S. Court of Appeals said the lower court should hear arguments from the parties in the Kennedy et al. v. Biden lawsuit and make a decision on the plaintiffs’ standing in light of the recent U.S. Supreme Court decision in a related case, Murthy v. Missouri.
The Supreme Court denied the preliminary injunction in Murthy v. Missouri, ruling that the plaintiffs in that case lacked legal standing.
Following Thursday’s ruling in Kennedy v. Biden, the preliminary injunction in that case will remain on hold until the U.S. District Court for the Western District of Louisiana issues its ruling on the plaintiffs’ standing.
Kim Mack Rosenberg, general counsel for CHD, told The Defender:
“We are pleased that both the 5th Circuit and Judge Doughty in the U.S. District Court for the Western District of Louisiana are taking seriously the issue of plaintiffs’ standing in this case and evaluating the issue.
“We believe the record will show that there are more than sufficient facts to support standing in this case and that this case will move forward to address the serious questions of government censorship which threaten First Amendment rights of speakers and listeners.”
Kennedy, CHD founder and chairman on leave, CHD and Connie Sampognaro in March 2023 filed a class action lawsuit against President Joe Biden 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.
In Murthy, v. Missouri, called Missouri v. Biden when it was first filed in May 2022, two states and five social media users also sued top Biden officials and government agencies for pressuring social media companies to censor content.
The two cases are separate, but make similar allegations. Judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana, who heard both cases, consolidated them because they shared common legal and factual issues.
Once consolidated, the cases also shared processes such as discovery of evidence. However, they continue to be heard and ruled on separately.
In Murthy v. Missouri, Doughty issued a preliminary injunction on July 4, 2023 prohibiting key Biden administration officials and agencies from contacting social media companies with the intent to censor protected speech.
On appeal, the 5th Circuit limited, but partially upheld the injunction, which the Biden administration then appealed to the Supreme Court.
Rather than deciding the case on its merits — the legal questions at stake in the case — the Supreme Court justices ruled in a 6-3 decision that the plaintiffs didn’t have legal standing to bring their case, reversing the decisions by two lower courts.
The Court ruled plaintiffs lacked standing to sue because they failed to demonstrate the administration targeted them specifically for any particular act of censorship or that such censorship was ongoing and likely to harm them in the future
While Murthy v. Missouri was moving through the courts, Doughty also issued a preliminary injunction in Kennedy v. Biden, similarly prohibiting key Biden administration officials and agencies from coercing or “significantly encouraging” social media platforms to suppress or censor online content.
However, he simultaneously issued a stay on the injunction until 10 days after the Supreme Court ruled in Missouri v. Biden. Once the Court ruled in that case, on June 26, the injunction was set to take effect July 7.
The Biden administration filed an emergency motion to stop the injunction, contending the administration was likely to win the case on its merits because the Kennedy plaintiffs, like the Murthy plaintiffs, lacked standing.
The Kennedy plaintiffs opposed the motion, arguing that the Murthy v. Missouri ruling strengthened their claim to standing rather than weakened it. The Supreme Court, they said, specified the prerequisites for standing — prerequisites the Murthy plaintiffs lacked, but the Kennedy plaintiffs have.
In their ruling Thursday, the 5th Circuit judges wrote, “While we acknowledge that the Kennedy Plaintiffs assert at least some different, and perhaps stronger, grounds for standing than the plaintiffs in Murthy, the record in this case is not fully developed.”
On that basis they remanded the case to the lower court to rule on standing.
Although the 5th Circuit temporarily suspended the injunction, it rejected the Biden administration’s motion to suspend it because the administration was likely to win the case on merit.
Instead, the court instituted an administrative injunction, which simply put the injunction on hold while the court record could be further developed.
After the 5th Circuit’s order on Thursday, Judge Doughty also issued an order specifying a timeline for the case. The Kennedy plaintiffs have until Aug. 1 to file a brief laying out their argument for standing. The defendants will have until Aug. 8 to issue a response and the plaintiffs can respond again by Aug. 12.
Plaintiffs’ argument for standing
Attorneys for the Kennedy plaintiffs argue they have a “much stronger” claim to standing than Missouri v. Biden plaintiffs because the Biden administration “specifically, repeatedly, and successfully induced the platforms to censor” both Kennedy and CHD.
For example, three days after President Biden took office in January 2021, the White House Digital Director Clarke Humphrey emailed Twitter to censor an anti-COVID-19 vaccine tweet by Kennedy and the defendants labeled him part of the so-called “disinformation dozen.”
The administration also had Facebook suppress a CHD post.
In May 2021, Rob Flaherty, White House deputy assistant to the President, chastised Facebook for failing to censor the Disinformation Dozen. Soon after, all of them were censored.
The Centers for Disease Control and Prevention also worked to have social media platforms delete or shadow ban posts by people and groups spreading so-called “disinformation” about the COVID-19 vaccine, including both Kennedy and CHD.
The Kennedy v. Biden attorneys also argued that the censorship of the plaintiffs is not only in the past. It is “present, ongoing, and continuing, which renders their standing unassailable.”
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They wrote:
“The Kennedy Plaintiffs are still being censored online right now — in the present. CHD’s complete de-platforming from Facebook and Instagram (which occurred as a result of the Government’s pressure campaign against the “Disinformation Dozen”) remains unchanged, meaning that even now, CHD still can’t post content on either of those platforms.”
They also argued that because Kennedy is a presidential candidate, “the irreparable harm threatened by governmental censorship of Mr. Kennedy is far more immediate, and of a magnitude far greater, than the harm claimed by the Murthy plaintiffs.”
In his dissenting opinion in Murthy v. Missouri, Justice Samuel Alito wrote, “Because Mr. Kennedy has been mentioned explicitly in communications between the Government and social media platforms, he has a strong claim to standing.”
The Supreme Court also rejected the Murthy v. Missouri plaintiffs’ standing for their “right-to-listen” claim, which is the right of the plaintiffs to have access to the uncensored speech of others.
The Court said the plaintiffs had not identified specific topics they had been unable to hear or follow.
The attorneys argue that because plaintiff Sampognaro is potentially immunocompromised, she is in need of access to accurate information about COVID-19 and possible treatments and the censorship has obstructed that access.
Also, they argue CHD’s 70,000-plus members “tend to be avid consumers of news concerning COVID-19 and governmental health policies,” and have been prevented from accessing that information and from learning and communicating with other people concerned with similar issues.
“These concrete, specific injuries to Sampognaro’s and CHD’s members’ right to receive information important to their own health is sufficient for standing,” the attorneys argue.
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. In keeping with Federal Election Commission rules, this content does not represent an endorsement of Mr. Kennedy, who is on leave from CHD and is running as an independent for president of the U.S.
