Mark Changizi, et al. v. Department of Health and Human Services, et al.

Washington, DC (March 27, 2024) – The New Civil Liberties Alliance has petitioned the U.S. Supreme Court for a writ of certiorari in Changizi, et al. v. HHS, a lawsuit combating the government’s unconstitutional assault on freedom of speech. NCLA’s petition asks the Court to resolve a circuit split between the Fifth and Sixth Circuits on what plaintiffs must show to satisfy Article III standing in censorship cases against the government. Officials in the Department of Health and Human Services (HHS) have violated the First Amendment by directing social media companies to censor viewpoints that conflict with HHS’s Covid-19 messaging. The petition urges the Court to overturn the U.S. Court of Appeals for the Sixth Circuit ruling that NCLA clients Mark Changizi, Michael Senger, and Daniel Kotzin lacked standing to challenge the censorship regime that silenced them.

Changizi, Senger, and Kotzin were active Twitter users suspended after building large followings due to their reasoned criticism of Covid-19 restrictions. Federal officials in HHS, the White House, and elsewhere told social media companies what and whom to censor, making the government responsible for suspensions and de-platforming of Petitioners’ accounts. Discovery in NCLA’s Murthy v. Missouri case heard by the Supreme Court last week shows the government browbeat social media companies into censoring Covid-19 views of which the government did not approve. The Changizi district court did not allow any discovery before dismissing the case.

The Sixth Circuit wrongly affirmed the district court’s motion to dismiss the Changizi suit, determining NCLA’s clients lacked standing to bring their claims in court. This dismissal rests on erroneous interpretations of the governing legal standards. The Sixth Circuit’s opinion sets a standard conflicting with clearly established, governing precedent, and it would prevent many litigants with legitimate legal claims against surreptitious federal censorship from obtaining relief. The Sixth Circuit also ignored discovery material brought to light in Murthy v. Missouri that corroborates the plausibility of NCLA’s claims against the government in the Changizi case.

The Supreme Court will soon decide whether to uphold the Fifth Circuit’s preliminary injunction in Murthy v. Missouri that would block officials at the White House and several federal agencies from abridging, significantly encouraging, or coercing social media platforms to censor constitutionally protected speech. In Murthy, the Fifth Circuit determined that social media users facing similar censorship to that suffered by the Changizi plaintiffs have standing to pursue the same First Amendment claims against many of the same officials.

The Sixth Circuit partially based its decision to deny standing in Changizi on a glaring factual error. It claimed that the constitutional violations in Murthy occurred “on a more comprehensive scale” rather than “with respect to discrete individual plaintiffs.” In fact, the Fifth Circuit did address censorship against five discrete individual plaintiffs in Murthy, finding they each had standing to sue. The Supreme Court should resolve the resulting circuit split on this standing issue in the First Amendment context, at least holding NCLA’s Changizi cert petition until it issues a decision in Murthy. Assuming the Court upholds standing for even one individual plaintiff in Murthy, it should grant this cert petition, vacate the Sixth Circuit’s decision, and remand the case for further proceedings.

NCLA released the following statements:

“The Changizi allegations regarding government-induced social media censorship are nearly identical to those made in Murthy v. Missouri. If the individual plaintiffs in Murthy have standing to sue, then so do Changizi, Senger, and Kotzin. And they are entitled to discovery on government officials’ non-public communications encouraging Twitter to censor them.”
—Sheng Li, Litigation Counsel, NCLA

“This case was filed prior to Murthy and the allegations clearly demonstrated standing if the proper inferences are provided to the Plaintiffs as the law requires. Plaintiffs should not be shut out of court simply because they don’t yet have the full story of when and how the Government is censoring their speech.”
— John Vecchione, Senior Litigation Counsel, NCLA

For more information visit the case page here and watch the case video here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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Washington, DC (October 31, 2023) – The New Civil Liberties Alliance has filed a petition in Changizi, et al. v. HHS, et al. asking an en banc U.S. Court of Appeals for the Sixth Circuit, or the three-judge panel, to rehear the case and halt the government’s unconstitutional assault on free speech. Biden Administration officials, including some within the Department of Health and Human Services, have violated the First Amendment by directing social media companies to censor viewpoints that conflict with the government’s Covid-19 messaging.

Mark Changizi, Michael P. Senger, and Daniel Kotzin were active Twitter users suspended after building large followings due to their reasoned criticism of Covid-19 restrictions. Statements by President Biden, then-White House Press Secretary Jen Psaki, and other federal officials unequivocally prove they told social media companies what and whom to censor, making the government responsible for suspensions and de-platforming of Plaintiffs’ accounts. Discovery in similar cases—including emails and text exchanges revealed by NCLA’s Missouri v. Biden case now set for hearing at the U.S. Supreme Court—shows that the government browbeat social media companies into censoring non-government-approved Covid-19 views.

But on September 14, a Sixth Circuit panel wrongly affirmed the district court’s motion to dismiss Changizi, Senger and Katzin’s suit, determining they lacked standing to bring their claims in court because the Complaint did not sufficiently trace their harms to the government’s conduct. NCLA believes the dismissal rests on erroneous interpretations of the governing legal standards. Like the district court, the panel ignored facts that substantiated the Plaintiffs’ claims and failed to draw all inferences in Plaintiffs’ favor as it must at the motion-to-dismiss stage.

The panel, as well as the district court judge, refused to consider evidence, which surfaced after the initial complaint’s filing, that substantially corroborated the Plaintiffs’ claims. The standard the Changizi opinion sets—which conflicts with clearly established, governing precedent—would prevent many litigants with legitimate legal claims against surreptitious federal censorship from obtaining the relief they deserve. The courts also erred by ignoring Plaintiffs’ arguments about their First Amendment right to receive information. The panel failed to address these allegations, although they do not suffer from the same purported ‘timeline’ problem that the panel deemed to have derailed Plaintiffs’ arguments about their own social media posts being censored.

On September 8, the U.S. Court of Appeals for the Fifth Circuit granted a preliminary injunction in Missouri v. Biden that would block officials at the White House and several federal agencies from coercing or significantly encouraging social media platforms to censor constitutionally protected speech. The Sixth Circuit panel partially based its decision to deny standing in Changizi on a factual error, claiming that the constitutional violations in Missouri v. Biden occurred “on a more comprehensive scale” rather than “with respect to discrete individual plaintiffs.” But, of course, the Fifth Circuit judges who granted the Missouri v. Biden injunction did address censorship against the five individual plaintiffs in that case, finding they each had proper standing. The en banc Sixth Circuit should correct the panel’s error and allow the Changizi plaintiffs to continue their lawsuit seeking to put a stop to the government’s extensive social media censorship activities.

NCLA released the following statement:

“At every turn, the district court deprived Plaintiffs of their day in court, failing to make inferences in their favor and holding them to impossible standards. Now, the Sixth Circuit has done the same. In doing so, it has created an untenable legal standard that conflicts with clearly established Supreme Court precedent. We urge the Sixth Circuit, sitting en banc, or the panel itself, to rehear the case and correct this error.”
— Jenin Younes, Litigation Counsel, NCLA

For more information visit the case page here and watch the case video here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (November 29, 2022) – Biden Administration officials, including some within the Department of Health and Human Services (HHS), have violated the First Amendment by directing social media companies to censor viewpoints that conflict with the government’s Covid-19 messaging. The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, appealed Changizi, et al. v. HHS, et al., which urges the U.S. Court of Appeals for the Sixth Circuit to reverse the lower court’s dismissal and allow the case to move forward.

Mark Changizi, Michael P. Senger, and Daniel Kotzin were active Twitter users who built large followings due to their reasoned criticism of Covid-19 restrictions. Statements by President Biden, Press Secretary Jen Psaki, and other federal officials unequivocally prove they told social media companies what and whom to censor. This fact makes the government responsible for suspensions and de-platforming of Plaintiffs’ accounts. Subsequent discovery in similar cases—including NCLA’s State of Missouri ex rel. Schmitt, et al. v. Joseph R. Biden, Jr., et al. suit—has shown that the government used state power to browbeat social media companies into censoring non-government-approved Covid-19 views. Emails and text exchanges revealed through discovery in that case show a previously unimaginable level of governmental entanglement in this viewpoint-based censorship scheme.

In granting HHS’s motion to dismiss, the court below erred. The court disregarded statements made by the President, who is in charge of all Defendants, and by Jen Psaki, threatening tech companies with adverse action if they did not carry out specific Covid-19-related censorship aims. The court did so because the President was not named as a defendant, which ignores the clear import of his role under Article II of the Constitution. Furthermore, the timing of Plaintiffs’ suspensions corresponded to the government’s escalating demands, creating the inference that Twitter was responding to government pressure by censoring the Plaintiffs’ accounts.

The district court premised its determination that Plaintiffs lacked standing to bring their claims on erroneous interpretations of the governing legal standards, holding them to an unreasonably high burden at the pleadings stage. The court essentially required Plaintiffs to prove their allegations that they had been censored because of the government. But that high bar is not the right standard by which to judge a motion to dismiss.

Nor is that what Plaintiffs ultimately have to prove on the merits. First Amendment precedent holds that Plaintiffs only need to show that the government, through coercive means or entanglement with private companies’ decision-making, turned Twitter’s censorship into state action and that such state action chilled Plaintiffs’ speech. By declining to accept these statements as evidence of the government’s involvement in social media censorship, the court did not draw factual inferences in Plaintiffs’ favor, as it must do when assessing a motion to dismiss.

The Sixth Circuit must reverse the district court’s erroneous judgment. By instrumentalizing tech companies including Twitter—through pressure, coercion, and threats—to censor viewpoints that federal officials have deemed “misinformation,” those officials have turned Twitter’s censorship into state action. The government’s policy of pressuring Twitter to censor the Plaintiffs and their viewpoints should be halted immediately.

NCLA released the following statements:

“The government may not direct social media platforms to censor expression of certain viewpoints about Covid-19 or anything else. The law is clear that the First Amendment prohibits government from using private companies to accomplish what it cannot do directly. The reasoning underlying the district court’s dismissal order in this case would prevent any individual from bringing a case alleging such censorship, since it will almost always be impossible—without discovery—to prove the government targeted a specific person. We’re confident that the Sixth Circuit will recognize that the lower court handled this case wrong, as discovery produced subsequently in Missouri v. Biden reveals the existence of a vast censorship network at the highest levels of government.”
— Jenin Younes, Litigation Counsel, NCLA

“Whether the government was responsible for the censoring of our clients is a factual issue. The district court’s decision on the pleadings alone would give the government carte blanche to intimidate and cajole private actors in reducing the public square to only government-approved views, so it must be reversed.”
— John J. Vecchione, Senior Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (March 25, 2022) – Mark Changizi, Daniel Kotzin, and Michael Senger each had or have Twitter accounts with tens of thousands of followers or more. Their Twitter platforms provided them with a social network, and an outlet to express their views, to hear the views of others, and to engage with detractors and fans alike. Outrageously, the U.S. Surgeon General and the Department of Health and Human Services (HHS) have directed social media platforms including Twitter to censor alleged “misinformation” about Covid-19. The speech ban has included information the Government later conceded was true but that conflicted with the Government’s messaging on Covid-19 at the time. On March 3, the Surgeon General demanded that the tech companies turn over information about individuals who spread such “misinformation,” a clear intimidation tactic that HHS has labeled a “Request for Information” (RFI). In response to Government pressure, Twitter has permanently banned Mr. Senger, and temporarily suspended Mr. Changizi and Mr. Kotzin.

The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, has filed a Complaint in the lawsuit, Changizi, et al. v. HHS, et al., in the U.S. District Court for the Southern District of Ohio. The lawsuit alleges that Surgeon General Vivek Murthy and HHS Secretary Xavier Becerra, whom NCLA has sued in their official capacities, do not have the statutory authority to issue this RFI.

In May 2021, the White House began a coordinated and escalating public campaign to stop the flow of purported “health misinformation” related to Covid-19. In a May 5, 2021 press briefing, White House Press Secretary Jen Psaki stated that the President believed social media platforms have a responsibility to censor health “misinformation” related to Covid-19 vaccinations, that by not doing so they were responsible for American deaths, and that the President believed “anti-trust” programs were in order to effectuate this end. In other words, if tech companies refused to censor, they would face antitrust investigations—or worse. By July, the Surgeon General and HHS ratcheted up the pressure by issuing an advisory on the subject, commanding technology platforms to collect data on the “spread and impact of misinformation” and “prioritize early detection of misinformation ‘super-spreaders’ and repeat offenders” by “impos[ing] clear consequences for accounts that repeatedly violate platform policies.”

Following this initiative, Twitter began to suspend more and more accounts, some permanently. Between May and December 2021, all three Plaintiffs were suspended from Twitter due to their tweets about Covid-19. This sort of censorship strikes at the heart of what the First Amendment to the U.S. Constitution was designed to protect—free speech, especially political speech, much of which has later been vindicated as accurate. Adding insult to injury, on March 3, the Surgeon General issued his RFI, demanding that technology platforms turn over “information about sources of Covid-19 misinformation” to the Government by May 2, 2022.

The Surgeon General does not have the authority to issue this demand. The statute only gives him the authority to implement measures to stem spread of communicable disease. The statute cannot reasonably be interpreted to allow him to order tech companies to censor individuals with whom he disagrees on Covid policy, or to demand that Twitter hand over information about such account holders without a warrant based on probable cause. Demanding social media platforms, including Twitter, to turn over information about users that the Government deems problematic constitutes a warrantless search in violation of the Fourth Amendment to the U.S. Constitution.

NCLA does not condone every position taken on Covid-19 by those whose Twitter accounts have been suspended or banned. But by instrumentalizing tech companies, including Twitter—through pressure, coercion, and threats—to censor viewpoints that the federal executive has deemed “misinformation,” the Surgeon General has turned Twitter’s censorship into state action. The Government’s policy of pressuring Twitter and other tech companies to censor the Plaintiffs should be halted immediately, and this RFI must be set aside.

NCLA released the following statements:

“It’s difficult to overstate the federal government’s cynicism in pretending to respect the First Amendment rights of American citizens while explicitly working with a company whose CEO says it ‘is not to be bound by the First Amendment’ in silencing American citizens on the most widely-used platform for political discourse.”
— Michael P. Senger, Plaintiff, Changizi, et al. v. HHS, et al.

“The Surgeon General apparently believes he can do whatever he wishes, even going so far as to commandeer technology companies to stifle the perspectives of those who differ from the government on Covid policies. But Congress has not given him the authority to coerce social media platforms into censoring the voices of those with whom he disagrees, and in fact it could not have given him this power. The Surgeon General’s demand has turned Twitter’s censorship into government action. Thus, this viewpoint-based suppression of speech violates our clients’ First Amendment rights to free speech.”
— Jenin Younes, Litigation Counsel, NCLA

“Surgeon General Murthy’s RFI is really a Request for Intimidation. HHS is a serial violator when it comes to abusing its statutory power. Incredibly, HHS is relying on the exact same statute to issue the RFI here that it relied on the past two years to justify its unlawful nationwide eviction moratorium. The Supreme Court finally shot down the illegal moratorium. NCLA hopes lower courts are quicker to act on this latest unconstitutional outrage.”
— Mark Chenoweth, Executive Director and General Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document