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August 2023
1. Dr. Meryl Nass Sues Maine Medical Board
Dr. Meryl Nass on Aug. 6, 2023 filed suit against the Maine Board of Licensure in Medicine and its individual members, alleging the board violated her First Amendment rights and her rights under the Maine Constitution.
2. RFK Jr. et al. v. Biden et al. Class Action
On July 24, 2023, a Federal judge issued an order consolidating this case with Missouri v. Biden.
3. Oral Arguments in Missouri v. Biden
On Aug. 10 in the Fifth Circuit, a three-judge panel heard oral argument on the Federal Government’s appeal of Judge Terry Doughty’s Jul. 4, 2023 order and 155-page decision enjoining certain activity by federal actors with respect to social media companies and censorship. David Dalia, an attorney who submitted an amicus brief on behalf of America’s Frontline Doctors, was also in attendance. Additionally, we had the opportunity to speak with many of the plaintiffs’/appellants’ counsel before and after the hearing.
The Fifth Circuit entered an administrative stay of the injunction – meaning this injunction is not currently being enforced – on the Federal defendants’ motion a few days after Judge Doughty’s order came down. The Fifth Circuit panel hearing the case was: Judge Edith Brown Clement, Judge Jennifer Walker Elrod, and Judge Don R. Willett. Not only was it hot outside, with 100-degree plus temps, but the panel was “hot” as well – actively volleying questions at counsel for both sides, with Judge Elrod being the most engaged in questioning counsel. The bulk of the Appellees/Plaintiffs’ argument was done by John Sauer.
The DOJ attorney representing the Defendants/Appellants tried to argue that the injunction was both vague and overbroad, claiming that coercion or similar activity was very narrowly defined and that the exceptions to the injunction carved out by Judge Doughty were confusing. Both Judge Elrod and Judge Willett drew some chuckles from the observers in suggesting that coercion was not necessarily an “if you don’t do this, then we will do this to you” situation on every occasion, suggesting there could be a broader swathe of coercion. Judge Elrod, making clear that she was not comparing the US government to an organized crime syndicate, drew an analogy to broader veiled threats from such illegal syndicates without overt consequences being identified, as the DOJ attorney emphasized was allegedly necessary.
Judge Willett meanwhile noted that sometimes coercion comes in the form of “Hey that’s a nice social media company you’ve got there, it would be a shame if something happened to it.” In addition, there was an interesting exchange when the panel asked if it made a difference if the government was lying about mal/mis/disinformation to promote its narrative vs. being mistaken. Judge Willett responded by pointing out that there have been instances where this maligned information has turned out to be accurate.
Initially, each side had been allotted 30 minutes for argument, but this was extended by the panel of its own accord. The panel was clearly engaged and wanted to have more time to gather information to assist in their deliberations. While the bulk of the argument focused on the substantive issues of the injunction and the federal government’s actions, the panel also queried the parties about standing, particularly for the State plaintiffs, and Mr. Sauer artfully explained – with four separate arguments – how the state plaintiffs had standing and noted that even he had been censored on social media only a few weeks prior.
The panel was very interested in the documents produced recently by Facebook to the House Judiciary Committee – asking if they could take judicial notice of them. The federal government balked at this, but Mr. Sauer noted that the documents affirmed what had been produced in the proceedings in Missouri v Biden.
The panel did not take any action from the bench and took the matter under advisement, failing to announce a time frame for a decision – though the general feeling was that it would be soon. The DOJ attorney requested at the end that if the Court determined to lift the stay and allow the injunction to be enforced that it not lift the stay for ten days so as to allow the Solicitor General of the United States to determine whether to appeal any such decision to the US Supreme Court.
Related articles:
- 5th Circuit to Hear Oral Argument on Aug. 10 in Landmark Free Speech Lawsuit, Missouri v. Biden
- ‘Big Victory’: CHD Lawsuit Alleging Key Biden Officials Colluded With Tech Giants to Censor Free Speech Consolidated With Missouri Censorship Case
4. Rally Outside Courthouse in Staten Island
In the case of Dicapua v. City of New York, we will reappear on Aug. 14 to argue the class certification and for Article 78 relief on behalf of the class. If successful, the statutory claims will proceed for further damages.
Rally Information:
Staten Island court on Aug. 14 – Rally at 10:30 a.m.
Richmond Supreme Court
26 Central Avenue
Staten Island, NY 10301
Read more about this case here: Litigation Actions
5. CHD files its 2nd FOIA lawsuit against the FDA
The FDA has promised to vigilantly monitor the safety of COVID-19 injections and continues to assure the public that they are safe. The Feb. 10, 2021, Center for Biologics Evaluation and Research (CBER) COVID-19 Vaccine Safety Surveillance: Active Monitoring Master Protocol describes the FDA’s obligation to monitor rates of adverse events of special interest following COVID-19 vaccination. This FOIA request, submitted to the FDA on Sep. 7, 2022, seeks records of that monitoring. Because FDA has not yet provided records, CHD sued FDA on Aug. 10, 2023.
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