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The U.S. Supreme Court today rejected a motion by Children’s Health Defense (CHD) and its chairman on leave, Robert F. Kennedy Jr., to intervene in a lawsuit alleging the Biden administration colluded with social media companies to censor users’ posts.
Kennedy and CHD filed the motion to intervene on Oct. 26, days after the Supreme Court agreed to hear a lawsuit brought by the attorneys general of Missouri and Louisiana accusing the White House, through its communication with tech firms, of violating the First Amendment.
Associate Justice Samuel Alito, in his lone dissent, said he would have granted CHD’s and Kennedy’s motion because denying it “may cause irreparable harm” to Kennedy, who he said is one of the alleged victims of a “‘coordinated campaign’ by high-level federal officials to suppress the expression of disfavored views on social media platforms.”
Calling today’s decision disappointing, CHD President and CEO Mary Holland said:
“The Government-Big Tech collusion to censor government critics, which is at the heart of this matter, raises the most significant threat to First Amendment freedom in our times.
“We agree wholeheartedly with Justice Alito’s dissent that allowing the Kennedy Plaintiffs to intervene would ensure that the Supreme Court reaches the merits of this case and would prevent “the irreparable loss of Mr. Kennedy’s First Amendment rights.”
Holland said Kennedy and CHD have been “directly harmed” and the court’s failure to allow intervention “means that our rights are likely to continue to be violated until spring or even June 2024.”
“This denial is particularly severe for Mr. Kennedy who is running for president,” Holland said. “As Mr. Kennedy has been mentioned explicitly in communications between the government and social media platforms, we agree with Justice Alito that ‘he has a strong claim to standing, and the Government has not argued otherwise.’”
In his dissenting opinion, Alito wrote:
“The denial of intervention is likely to prevent Mr. Kennedy from vindicating the rights he claims until the spring of 2024 and perhaps as late as June of that year. And by that time, several months of the Presidential campaign will have passed.”
‘Our democratic form of government is undermined’
The injunction would have prevented the Biden administration and several agencies from engaging in communication with social media companies to coerce them to censor “misinformation” or “disinformation” until the Missouri case was decided.
On Oct. 1, the Supreme Court stayed Doughty’s July 4 injunction (as amended by the 5th Circuit U.S. Court of Appeals) until Oct. 20, when it ruled to maintain its stay until it could hear the case.
Alito, joined by Associate Justices Clarence Thomas and Neil Gorsuch, dissented in the Oct. 20 decision, stating the majority of the court did not undertake a full review of the record or explain its decision.
Alito cited the two lower court decisions that, “based on extensive findings” of a “‘coordinated campaign’ of unprecedented ‘magnitude orchestrated by federal officials that jeopardized a fundamental aspect of American life,’” determined “the plaintiffs were likely to be able to prove their claims and were threatened with irreparable harm.”
Kennedy and CHD also requested an injunction in their First Amendment case against the Biden administration, a class action suit also alleging key Biden officials colluded with social media companies to censor Americans’ speech. The plaintiffs filed for a preliminary injunction on April 12, before the two lawsuits were consolidated on July 24 by Judge Terry Doughty of the U.S. District Court for the Western District of Louisiana.
The consolidation applies only to the District Court’s handling of the combined cases, not to the Supreme Court’s consideration of the injunction in its current case.
In their motion to intervene filing with the Supreme Court, Holland and CHD attorney Jed Rubenfeld argued Kennedy’s speeches and interviews continue to be blocked online, and that Kennedy’s “unique interests as a presidential candidate” — and the interests of “millions of Americans who wish to hear his views” and CHD members to wish receive “uncensored health information” — are currently unrepresented in the case.
Because Kennedy et al. v. Biden et al. is similar to Missouri et al. v. Biden et. al. but is “stuck in the District Court,” Alito said, “Kennedy’s arguments on the merits are essentially the same” and “allowing intervention would not significantly affect the petitioner’s burden with regard to that issue.”
The Supreme Court’s decision in this case is not binding on Kennedy et al. v. Biden et al., according to Holland, who said it nonetheless could set a precedent for how that case is adjudicated.
Alito said denying intervention may prevent Kennedy from “obtaining redress for an even longer period” — the Supreme Court won’t be ruling on Missouri et al. v. Biden et al. until next year — adding that Kennedy has a “strong claim to standing” due to the government explicitly mentioning him in their communications with social media platforms.
“Our democratic form of government is undermined if Government officials prevent a candidate for high office from communicating with voters, and such efforts are especially dangerous when the officials engaging in such conduct are answerable to a rival candidate,” Alito said.
The Supreme Court decision may not come until “late in the spring of next year,” Alito wrote in that opinion, adding, “Government censorship of private speech is antithetical to our democratic form of government, and therefore today’s decision is highly disturbing.”
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.