In a court order Tuesday, a U.S. District judge rejected the Biden State Department’s attempts to dismiss a censorship lawsuit brought by The Daily Wire, The Federalist, and the State of Texas.
The Daily Wire lawsuit, filed jointly by the New Civil Liberties Alliance with The Federalist and Texas in December of 2023 to the U.S. District Court for the Eastern District of Texas, alleges that the U.S. State Department is engaging with and promoting censorship technology designed to bankrupt domestic media outlets with disfavored political opinions.
The lawsuit, which also names Secretary of State Antony Blinken and five other officials as defendants, asks the court to declare the State Department’s attempt to interfere with domestic speech illegal and to permanently bar it from developing, promoting, or encouraging others to use technology to de-amplify, shadow ban, or restrict “the lawful speech of the American press and Americans.”
The State Department’s scheme, the complaint states, is “one of the most audacious, manipulative, secretive, and gravest abuses of power and infringements of First Amendment rights by the federal government in American history.”
In response, the U.S. State Department filed two motions, one to dismiss the case and another to transfer the venue of the case from Texas to D.C. However, U.S. District Judge Jeremy D. Kernodle denied in large part both of the State Department’s motions.
In an order issued Tuesday, Judge Kernodle ruled that the plaintiffs “have satisfied their burden to demonstrate standing at this stage in the case,” denying the State Department’s motion to dismiss the lawsuit, dismissing only one count of the five-count complaint. Kernodle also ruled that the “venue is proper in the Eastern District of Texas,” fully denying the State Department’s motion to transfer the venue.
Judge Kernodle’s ruling begins by quoting directly from the First Amendment and previous rulings reinforcing the amendment’s centrality to the Constitution. “Congress shall make no law … abridging the freedom of speech, or of the press,” the order begins. “This provision enshrines ‘[o]ur profound national commitment to the free exchange of ideas.’ … Indeed ‘[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.’”
Judge Kernodle goes on to shoot down the State Department’s arguments for dismissal and change of venue.
As The Daily Wire reported in December, GEC was founded in 2011 as the Center for Strategic Counterterrorism Communications and tasked with countering the propaganda of foreign terrorists like Al Qaeda. In 2016, it was renamed, but kept the same counterterrorism mission. Congress has made clear that “none of the funds authorized” for the entity “shall be used for purposes other than countering foreign propaganda.”
Nonetheless, GEC turned its focus on Americans, the complaint alleges, using taxpayer funds to finance the development and promotion of censorship organizations such as NewsGuard and the Global Disinformation Index (GDI), which regularly target conservative media outlets such as The Daily Wire and The Federalist with the stated goal of limiting ad revenue.
The New Civil Liberties Alliance’s Mark Chenoweth, who is representing the outlets, said “the federal government cannot do indirectly what the First Amendment forbids it from doing directly.”
GDI’s main product is a “Dynamic Exclusion List” of media outlets that it says present a “high risk for disinformation.” It licenses the list to advertisers, who adopt it as a convenient way to avoid boycotts from the Left. That playbook was deployed last month against Elon Musk, when blue-chip advertisers were persuaded to stop advertising on the platform because the Left-wing Media Matters group claimed that big companies’ ads occasionally appeared near objectionable content.
GDI says it aims to destroy “the incentive to create [disinformation] for the purpose of garnering advertising revenues.”
GDI keeps its main blacklist secret, but publicly published its top 10 “riskiest” outlets, which was essentially a list of America’s most prominent and mainstream conservative media publications, including both The Daily Wire and The Federalist, as well as the New York Post, and Reason Magazine.
GDI “was funded and promoted by State Department Defendants,” the lawsuit states. “State Department Defendants’ active intervention in the news media market to make disfavored media unprofitable thus had devastating consequences to Media Plaintiffs.”
Also funded by the State Department is for-profit company called NewsGuard, which said it aimed to “cut off revenues to fake news sites” by coming up with a whitelist that purported to name every legitimate news site. NewsGuard ranks The Federalist as “unreliable” and The Daily Wire as “credible with significant exceptions.”
GEC funded GDI in 2021 through its U.S.-Paris Tech Challenge, in which GDI was awarded $100,000. The Washington Examiner reported that the State Department-funded National Endowment for Democracy apparently funneled hundreds of thousands of dollars more to GDI. The National Endowment for Democracy later acknowledged its “mandate is to work around the world and not in the United States,” and thus would no longer fund GDI.
The State Department also co-sponsored a “COVID-19 misinformation and disinformation” tech challenge that gave a prize to NewsGuard. NewsGuard said in a press release that it planned to “help” the State Department by flagging COVID “hoaxes.” One of the “hoaxes” flagged by NewsGuard was that COVID might have come from a Chinese lab, a scenario now viewed by U.S. agencies to be likely.
The lawsuit says that the government used tools developed to be used against foreign nations against political opponents at home.
“State Department disinformation tools were developed… as tools of warfare… in the context of national security” and “foreign relations,” then “misdirected to be used at home against domestic political opponents,” it said.
Texas Attorney General Ken Paxton says he is “proud to lead the fight to save Americans’ precious constitutional rights from Joe Biden’s tyrannical federal government.”
“The State Department’s mission to obliterate the First Amendment is completely un-American,” Paxton said. “This agency will not get away with their illegal campaign to silence citizens and publications they disagree with.”
The lawsuit argues that Paxton’s ability to enforce Texas’ anti-censorship laws were infringed by the State Department’s funding of censorship tools.
“The Biden administration is illegally funding organizations with the stated goal of financially crippling media outlets whose coverage does not walk in lockstep with the government’s ideological agenda,” The Daily Wire said in a statement on the lawsuit. “We sued the Biden administration before over its unconstitutional vaccine mandate, and we won. This time, we’re suing for our rights, all news organizations’ rights, and the constitutional guarantee of a free press that all Americans deserve.”
The Daily Wire and The Federalist are represented by Margot Cleveland, Margaret Little, and Casey Norman at the New Civil Liberties Alliance (NCLA).