Murthy, et al. v. Missouri, et al. (f/k/a Missouri, et al. v. Biden, et al.)

Washington, DC (March 18, 2024) – Today, the Supreme Court heard oral argument in the New Civil Liberties Alliance’s Murthy v. Missouri case, considering whether to uphold a historic preliminary injunction granted by the U.S. Court of Appeals for the Fifth Circuit. The injunction, temporarily stayed by the Court, would bar officials from the White House, CDC, FBI, Cybersecurity and Infrastructure Security Agency (CISA), and Surgeon General’s office from coercing or significantly encouraging social media platforms to censor constitutionally protected speech. The injuries to NCLA’s clients—Drs. Jayanta Bhattacharya, Aaron Kheriaty, and Martin Kulldorff, and Ms. Jill Hines—supplied standing for many of the arguments made in the courtroom today, urging the Court to uphold the injunction in defense of Americans’ First Amendment rights.

In September, a Fifth Circuit panel upheld the key components of U.S. District Judge Terry Doughty’s July 4 preliminary injunction order, prohibiting named federal officials from coercing or significantly encouraging social media companies to suppress legal speech. That decision vindicated NCLA’s clients, who have been blacklisted, shadow-banned, de-boosted, throttled, and suspended on social media as part of a years-long censorship campaign orchestrated by the White House, CDC, FBI, CISA, and Surgeon General in a “whole of government” effort.

This censorship regime has successfully suppressed perspectives contradicting government-approved views on hotly disputed topics such as whether natural immunity to Covid-19 exists, the safety and efficacy of Covid-19 vaccines, the virus’s origins, and mask mandate efficacy. The vast, coordinated silencing of First Amendment-protected speech has targeted influential, highly qualified voices including doctors and scientists like Drs. Bhattacharya, Kheriaty, and Kulldorff, as well as those like Ms. Hines who have tried to raise awareness of issues.

NCLA has emphasized throughout this case that the First Amendment’s text forbids “abridging” (diminishing) the freedom of speech, meaning the government’s scheme violates the Constitution even when it encourages social media platforms to suppress legal speech without coercing them. Though the Fifth Circuit’s injunction only forbids coercing or significantly encouraging the suppression of legal speech, the Supreme Court could and should expand it to bar the government from getting the social media platforms to abridge speech to any degree whatsoever.

By unlawfully influencing the enforcement of the social-media platforms’ content-moderation policies, the government gravely harmed the ability of NCLA’s clients to convey their views to the public. Officials also deprived NCLA’s clients and other Americans of their right to hear and respond to opinions that differ from the government’s. Judge Doughty strikingly described the Administration’s conduct as “arguably the most massive attack against free speech in United States history” and “akin to an Orwellian Ministry of Truth.”

NCLA released the following statements:

“Our clients, who include top doctors and scientists, were censored for social media posts that turned out to be factually accurate, depriving the public of valuable perspectives during a public health crisis. We’re optimistic that the majority will look at the record and recognize that this was a sprawling government censorship enterprise without precedent in this country, and that this cannot be permitted to continue if the First Amendment is to survive.”
— Jenin Younes, Litigation Counsel, NCLA

“I stand here representing the hundreds of millions of Americans who are not medical professionals, academics, or journalists but who simply knew that what was happening in America was not right. We went to social media to voice our opinions and were silenced by government employees who bullied social media snowflakes into silencing our voices. The government has no authority to police our opinions; they are protected speech. I would argue the government is the source of misinformation, and it is our responsibility as Americans to make every effort to correct that.”
— Jill Hines, NCLA Client

“Just down the street, the Constitution of the United States sits in the Archives. If Americans don’t stand up and defend our constitutional rights, it is just a piece of paper. I am honored to be here with NCLA and my co-plaintiffs to defend the constitutional right of free speech, which has been systematically suppressed by the federal government. I trust that the Supreme Court will do the right thing and uphold the injunction against government censorship of constitutionally protected speech.”
— Dr. Aaron Kheriaty, NCLA Client, Fellow and Director, Bioethics and American Democracy Program, Ethics and Public Policy Center

“During the Covid era, the government promulgated misinformation on lockdowns, school closures, immunity, risk stratification, Covid vaccine efficacy against infection, and Covid vaccine harm. The First Amendment should have protected the American people by permitting the public to loudly correct the government on these matters. Instead, the government censored Americans who were telling the truth. In the Murthy v. Missouri case, the Supreme Court has the opportunity to restore the First Amendment in this country. I hope it does so.”
— Dr. Jayanta Bhattacharya, NCLA Client, Professor at the Stanford University School of Medicine in the Department of Health Policy

“The First Amendment does not allow the government to abridge speech based on whether the speech is true or false. That is what the government did here, and if that is allowed then the First Amendment is a dead letter.”
— Mark Chenoweth, President, NCLA

For more information visit the case page here or 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 (February 12, 2024) – Forty-five Members of Congress, 16 states, state legislators, former government officials, journalists, attorneys, media personalities, academics, activist groups and research organizations have filed 27 amici curiae briefs supporting the New Civil Liberties Alliance’s position in Murthy v. Missouri against government-directed censorship. NCLA is asking the Supreme Court to uphold a preliminary injunction granted by the Fifth U.S. Circuit Court of Appeals that bars White House, CDC, FBI, Cybersecurity and Infrastructure Security Agency, and Surgeon General’s office officials from significantly encouraging social media platforms to censor lawful speech. The Circuit court upheld key components of a preliminary injunction order issued by U.S. District Judge Terry Doughty, who described the Administration’s scheme as “arguably the most massive attack against free speech in United States history” and “akin to an Orwellian Ministry of Truth.”

Representing individual respondents Drs. Jayanta Bhattacharya, Martin Kulldorff, and Aaron Kheriaty, and Ms. Jill Hines, NCLA looks forward to presenting oral argument to the Supreme Court in Murthy v. Missouri on March 18, alongside the co-respondent States of Missouri and Louisiana. NCLA thanks amici for speaking out in defense of Americans’ First Amendment rights.

The amici who filed in support of NCLA’s position include the International Center for Law & Economics; Foundation for Individual Rights and Expression, National Coalition Against Censorship, and First Amendment Lawyers Association; Claremont Institute’s Center for Constitutional Jurisprudence; America’s Frontline Doctors and Dr. Simone Gold, M.D., J.D.; The Buckeye Institute; Charlie Kirk, David Harris, Jr., and Robby Starbuck; National Institute of Family and Life Advocates; Informed Consent Action Network; Rep. Jim Jordan and 44 Other Members of Congress; National Religious Broadcasters; American Free Enterprise Chamber of Commerce; “Twitter Files” Journalists: Matt Taibbi, Michael Shellenberger, Lee Fang, David Zweig, Leighton Woodhouse, and Alex Gutentag; Justin Hart and the Liberty Justice Center; Center for American Liberty; Americans for Prosperity Foundation; Manhattan Institute, REACT19, and three vaccine-injured individuals; Association of American Physicians and Surgeons; Institute for Free Speech; Atlantic Legal Foundation; Louder with Crowder, LLC; Kennedy Plaintiffs; National Center for Public Policy Research, et al.; The Rutherford Institute; America’s Future, Free Speech Coalition, Free Speech Def. and Ed. Fund, Gun Owners of America, Gun Owners Fdn., Gun Owners of Cal., Tennessee Firearms Assn., Public Advocate, U.S. Constitutional Rights Legal Def. Fund, Leadership Institute, DownsizeDC.org, Downsize DC Fdn., The Western Journal, and Conservative Legal Def. and Ed. Fund; Angela Reading; State of Montana, 15 Other States, and the Arizona Legislature; Amicus Populi and Freedom X.

The 27 amici briefs bolster NCLA’s arguments and address concerns including threats to the democratic process, to free public discourse, and the problem with federal agencies straying from their proper missions.

Excerpts follow:

“The House Judiciary Committee and the Weaponization Subcommittee have been conducting an ongoing investigation into how and to what extent the executive branch has coerced or colluded with social media companies to censor speech. Very recent evidence, obtained in said investigation in the weeks after the district court’s preliminary injunction ruling further corroborates the district court’s findings.”
—  Rep. Jim Jordan and 44 Other Members of Congress

“Without that open and robust exchange of ideas, deliberative democracy and all its attendant benefits withers and dies. The extensive federal censorship campaign outlined in the district court’s and Fifth Circuit’s thorough opinions, distorted—and still distorts—the nature of that ‘public exchange of ideas’ and undermines ‘deliberative democracy.’”
—  State of Montana, 15 Other States, and the Arizona Legislature

“The case’s facts demonstrate the myriad, subtle ways the administrative state can ‘abridg[e] … the freedom of speech, or of the press.’ Without the constitutional restraints of Congressional oversight and judicial review that the Founders envisioned, administrative agencies have vast freedom to abridge Americans’ free speech. For instance, the Cybersecurity and Infrastructure Security Agency (CISA), an agency within the Department of Homeland Security (DHS), has re-defined its mission from protecting Americans from foreign computer hacking to silencing American citizens and journalists who criticize government policy. With their bottomless stores of inducements and incentives, federal agencies can abridge speech directly or use third-party cut-outs.”
— “Twitter Files” Journalists: Matt Taibbi, Michael Shellenberger, Lee Fang, David Zweig, Leighton Woodhouse, and Alex Gutentag

“[T]he First Amendment problems addressed in this case are significant regardless of who is attempting to pull the levers behind the scenes. Although much attention has focused on the power of ‘Big Tech,’ it is a bad idea for government officials to huddle in back rooms with corporate honchos to decide which social media posts are ‘truthful’ or ‘good’ while insisting, Wizard of Oz-style, ‘pay no attention to that man behind the curtain.’ No matter how concerning it may be when private decisionmakers employ opaque or unwise moderation policies, allowing government actors to surreptitiously exercise control is far worse.
— Foundation for Individual Rights and Expression, National Coalition Against Censorship, and First Amendment Lawyers Association

“What makes this example of jawboning the most dangerous ever to reach the court is social media platforms’ social function. Preserving individuals’ ability to ‘communicat[e] thoughts … and discuss[] public questions,’ as well as the integrity of public discourse, depends on the preservation of public forums. But while the traditional public forums are the ‘streets and parks … held in trust for the use of the public,’ id., new technologies have made digital spheres the primary realms for most discussions.”
—  Manhattan Institute, REACT19, and three vaccine-injured individuals

“Just as Henry II was constrained in his ability to deal with Becket directly, American presidents are constrained by both the First Amendment and the political backlash that would attend any direct government action that could be viewed as an attempt to silence critics. … After all, [the King] did not actually order Becket’s murder. He simply vented his royal frustration over an actor who was spreading disinformation and encouraging behavior that the King deemed unhealthy for the body politic.”
—  The Buckeye Institute

“Perhaps it will seem like litigation hyperbole, but the fate of the freedom of speech in America may actually depend on this case.”
—  Kennedy Plaintiffs

NCLA released the following statements:

“The support from amici in this case is greatly appreciated and demonstrates that Americans support the Constitution and do not want the Government censoring them on social media.”
— John Vecchione, Senior Litigation Counsel, NCLA

“Amici in this case span the political spectrum, demonstrating that this is not a partisan issue. All Americans, regardless of their political leanings, should oppose the government’s flagrant disregard for free speech and the First Amendment.”
— Jenin Younes, Litigation Counsel, NCLA

For more information visit the case page here or 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 (February 6, 2024) — The New Civil Liberties Alliance has filed a brief for the respondents in the U.S. Supreme Court case of Murthy v. Missouri, urging the Justices to uphold a historic preliminary injunction granted by the U.S. Court of Appeals for the Fifth Circuit. The injunction would bar officials from the White House, CDC, FBI, Cybersecurity and Infrastructure Security Agency (CISA), and Surgeon General’s office from coercing or significantly encouraging social media platforms to censor constitutionally protected speech. Representing individual plaintiffs Drs. Jayanta Bhattacharya, Martin Kulldorff, and Aaron Kheriaty, and Ms. Jill Hines, NCLA eagerly anticipates presenting oral arguments to the Supreme Court on March 18, joining the Attorneys General of Louisiana and Missouri in defense of Americans’ First Amendment rights.

In September, a Fifth Circuit panel upheld the key components of U.S. District Judge Terry Doughty’s July 4 preliminary injunction order, prohibiting named federal officials from coercing or significantly encouraging social media companies to suppress legal speech. That decision vindicated NCLA’s clients, who have been blacklisted, shadow-banned, de-boosted, throttled, and suspended on social media as part of a years-long censorship campaign orchestrated by the White House, CDC, FBI, CISA, and Surgeon General in a “whole of government” effort.

This censorship regime has successfully suppressed perspectives contradicting government-approved views on hotly disputed topics such as whether natural immunity to Covid-19 exists, the safety and efficacy of Covid-19 vaccines, the virus’s origins, and mask mandate efficacy. The vast, coordinated silencing of First Amendment-protected speech has targeted influential, highly qualified voices including doctors and scientists like Drs. Bhattacharya, Kulldorff and Kheriaty, as well as those like Ms. Hines who have tried to raise awareness of issues. Though the U.S. Supreme Court has temporarily stayed the Fifth Circuit’s injunction, NCLA believes the Justices are ultimately unlikely to permit the egregious First Amendment abridgements this case has exposed.

The Fifth Circuit recognized that the Plaintiffs did “not challenge the social-media platforms’ content-moderation policies.” Rather, Plaintiffs challenged the government’s unlawful efforts to influence “enforcement of those policies.” The government gravely harmed the ability of NCLA’s clients to convey their views to the public, and it deprived Americans of their right to hear opinions that differ from the government’s. Judge Doughty strikingly described the Administration’s conduct as “arguably the most massive attack against free speech in United States history” and “akin to an Orwellian Ministry of Truth.” He was right, and the Supreme Court must not permit it.

NCLA is a leading defender of First Amendment rights against violations by the Administrative State. In December, NCLA launched a lawsuit against the U.S. State Department for funding the development, testing, and marketing of censorship technology used to suppress First Amendment-protected speech by conservative media outlets including The Daily Wire and The Federalist based on viewpoints expressed in their content. On Wednesday, the Securities and Exchange Commission denied the NCLA’s long-standing petition to amend the agency’s “Gag Rule,” under which SEC forbids settling parties from even truthfully criticizing their cases in public. NCLA plans to challenge SEC’s denial of the petition in court.

NCLA released the following statements:

“If the Government could not pass a law blocking this speech it should not be able to browbeat third parties into blocking it. Police officers can’t tell booksellers what to put on their shelves and the government can’t tell social media what to delete.”
— John Vecchione, Senior Litigation Counsel, NCLA

“Despite having neither the facts nor the law on its side, as two federal courts have found, the Biden Administration continues to defend its viewpoint- based censorship enterprise. NCLA is confident the Supreme Court will agree that the challenged actions violated the First Amendment rights of our clients and thousands of other Americans.”
— Jenin Younes, Litigation Counsel, NCLA

“The government’s job is to police the line between lawful and unlawful speech, not the line between true and false speech. Our Founding Fathers rightly did not trust the government to be the arbiter of truth. In fact, much of the speech the government suppressed in this case—about Covid-19 and Hunter Biden’s laptop—was truthful.”
— Mark Chenoweth, President and Chief Legal Officer, NCLA

For more information visit the case page here or 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 (October 20, 2023) — For the second time in eight days, the U.S. Supreme Court has granted certiorari in one of NCLA’s cases. This afternoon the Court agreed to hear arguments over the Fifth Circuit’s grant of a preliminary injunction in Missouri v. Biden, a case brought on behalf of NCLA clients Drs. Jayanta Bhattacharya, Martin Kulldorff, and Aaron Kheriaty, and Ms. Jill Hines, alongside the Attorneys General of Louisiana and Missouri. The injunction would bar officials[i] from the White House, CDC, FBI, Cybersecurity and Infrastructure Security Agency (CISA), and Surgeon General’s office from coercing or significantly encouraging social media platforms to censor constitutionally protected speech. The New Civil Liberties Alliance welcomes this opportunity to defend the First Amendment rights of our clients in the U.S. Supreme Court.

A Fifth Circuit panel last month upheld the key components of U.S. District Judge Terry Doughty’s July 4 preliminary injunction order, prohibiting named federal officials from coercing or significantly encouraging social media companies to suppress legal speech. That decision vindicated NCLA’s clients, who have been blacklisted, shadow-banned, de-boosted, throttled, and suspended on social media as part of the government’s years-long censorship campaign orchestrated by the White House, CDC, FBI, CISA, and Surgeon General—among others.

The Biden Administration’s censorship regime has successfully suppressed perspectives contradicting government-approved views on hotly disputed topics such as whether natural immunity to Covid-19 exists, the safety and efficacy of Covid-19 vaccines, the virus’s origins, and mask mandate efficacy. The vast, coordinated, and well-documented effort has silenced influential, highly qualified voices including doctors and scientists like Drs. Bhattacharya, Kulldorff and Kheriaty, as well as those like Ms. Hines who have tried to raise awareness of issues. Though the U.S. Supreme Court temporarily stayed the Fifth Circuit’s injunction today, NCLA believes the Justices are ultimately unlikely to permit the egregious First Amendment abridgements this case has exposed.

The Fifth Circuit recognized that the Plaintiffs did “not challenge the social-media platforms’ content-moderation policies.” Rather, Plaintiffs challenged the government’s unlawful efforts to influence “enforcement of those policies.” The government gravely harmed the ability of NCLA’s clients to convey their views to the public, and it deprived Americans of their right to hear opinions that differ from the government’s. Judge Doughty strikingly described the Administration’s conduct as “arguably the most massive attack against free speech in United States history” and “akin to an Orwellian Ministry of Truth.” He was right, and the U.S. Supreme Court must not permit it.

NCLA released the following statements:

“We are disappointed Americans’ First Amendment rights will be vulnerable to government infringement until this case is decided. But we are confident this Court, as strong as it is on First Amendment issues, will rule against the government and uphold our clients’ rights and liberties.”
— John Vecchione, Senior Litigation Counsel, NCLA

“NCLA is thrilled to have the opportunity to vindicate the First Amendment rights of our clients, and all Americans, in the nation’s highest court. We are confident that after a thorough review of the disturbing facts in this important case—which involves unprecedented government-imposed, viewpoint-based censorship—the Court will recognize the grievous, unconstitutional nature of the government’s conduct and enjoin it.”
— Jenin Younes, Litigation Counsel, NCLA

“If anything, the Fifth Circuit’s decision did not go far enough in enjoining the reprehensible conduct exposed in this case. The facts of this case show government agencies censored speech in a deliberate effort to control the narrative on several controversial topics ahead of the last election. The First Amendment forbids such censorship, and the Supreme Court must never allow such mischief again, if we are to keep our democracy.”
— Mark Chenoweth, President, NCLA

For more information visit the case page here or 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.

[i] The following members Executive Office of the President of the United States: White House Press Secretary, Karine Jean-Pierre; Counsel to the President, Stuart F. Delery; White House Partnerships Manager, Aisha Shah; Special Assistant to the President, Sarah Beran; Administrator of the United States Digital Service within the Office of Management and Budget, Mina Hsiang; White House National Climate Advisor, Ali Zaidi; White House Senior COVID-19 Advisor, formerly Andrew Slavitt; Deputy Assistant to the President and Director of Digital Strategy, formerly Rob Flaherty; White House COVID-19 Director of Strategic Communications and Engagement, Dori Salcido; White House Digital Director for the COVID-19 Response Team, formerly Clarke Humphrey; Deputy Director of Strategic Communications and Engagement of the White House COVID-19 Response Team, formerly Benjamin Wakana; Deputy Director for Strategic Communications and External Engagement for the White House COVID-19 Response Team, formerly Subhan Cheema; White House COVID-19 Supply Coordinator, formerly Timothy W. Manning; and Chief Medical Advisor to the President, Dr. Hugh Auchincloss, along with their directors, administrators and employees. Surgeon General Vivek H. Murthy; and Chief Engagement Officer for the Surgeon General, Katharine Dealy, along with their directors, administrators and employees. The Centers for Disease Control and Prevention (“CDC”), and specifically the following employees: Carol Y. Crawford, Chief of the Digital Media Branch of the CDC Division of Public Affairs; Jay Dempsey, Social-media Team Leader, Digital Media Branch, CDC Division of Public Affairs; and Kate Galatas, CDC Deputy Communications Director. The Federal Bureau of Investigation (“FBI”), and specifically the following employees: Laura Dehmlow, Section Chief, FBI Foreign Influence Task Force; and Elvis M. Chan, Supervisory Special Agent of Squad CY-1 in the FBI San Francisco Division. And the Cybersecurity and Infrastructure Security Agency (“CISA”), and specifically the following employees: Jen Easterly, Director of CISA; Kim Wyman, Senior Cybersecurity Advisor and Senior Election Security Leader; and Lauren Protentis, Geoffrey Hale, Allison Snell, and Brian Scully.

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Washington, DC (October 3, 2023) — Today, the U.S. Court of Appeals for the Fifth Circuit granted Plaintiffs’ petition for a panel rehearing and added the Cybersecurity and Infrastructure Security Agency to its preliminary injunction in Missouri v. Biden, barring the White House, U.S. Surgeon General’s office, CDC, FBI and now CISA officials from pressuring social media platforms to censor constitutionally protected speech. NCLA is pleased all these officials will be enjoined from infringing on the First Amendment rights of our clients, Drs. Jayanta Bhattacharya, Martin Kulldorff and Aaron Kheriaty, and Ms. Jill Hines—and other brave Americans.

The Fifth Circuit’s new action expands upon its September 8 ruling that upheld the most important portions of U.S. District Judge Terry Doughty’s July 4 preliminary injunction order, prohibiting those officials from pressuring social media companies to suppress First Amendment-protected speech. The injunction vindicates Drs. Bhattacharya, Kulldorff and Kheriaty, and Ms. Hines, who have all been blacklisted, shadow-banned, de-boosted, throttled, and censored on social media as part of the Biden Administration’s years-long censorship campaign.

The Fifth Circuit recognized that the Plaintiffs did “not challenge the social-media platforms’ content-moderation policies,” instead challenging the government’s unlawful efforts to influence “enforcement of those policies.” The government gravely harmed the ability of NCLA’s clients to convey their views to the public, and it deprived Americans of their right to hear opinions that differ from the government’s. Judge Doughty strikingly described the Administration’s conduct as “arguably the most massive attack against free speech in United States history” and “akin to an Orwellian Ministry of Truth.”

The Biden Administration’s ongoing censorship campaign successfully suppressed perspectives contradicting government-approved views on hotly disputed topics such as whether natural immunity to Covid-19 exists and is as effective as that induced through vaccination, Covid-19 vaccine concerns, the virus’s origins, and mask mandate efficacy. The vast, coordinated effort silenced public voices, including influential doctors and scientists.

“CISA—working in close connection with the FBI—held regular industry meetings with the platforms concerning their moderation policies, pushing them to adopt CISA’s proposed practices for addressing ‘mis-, dis-, and mal-information,’” the Fifth Circuit wrote in its new order. “CISA also engaged in ‘switchboarding’ operations, meaning … CISA officials acted as an intermediary for third parties by forwarding flagged content[.]”

The decision constituted a departure from the panel’s September ruling, which held that CISA had worked with the social media companies in a constitutionally permissible manner. Reassessing the facts, the Court this time concluded that “CISA’s role went beyond mere information sharing. Like the CDC for COVID-related claims, CISA told the platforms whether certain election-related claims were true or false. CISA’s actions apparently led to moderation policies being altered and content being removed or demoted by the recipient platforms.” The Fifth Circuit stayed the order for an additional 10 days, possibly to give the government time to petition for a writ of certiorari from the U.S. Supreme Court.

NCLA released the following statement:

“NCLA is pleased the Fifth Circuit has recognized that it erred in letting CISA—one of the worst violators of Americans’ First Amendment rights—off the hook, and we’re glad that CISA is now included in the injunction prohibiting censorship. We look forward to vindicating our clients’ rights in the Supreme Court, which we are confident will also recognize the egregious and intolerable nature of the government’s conduct.”
— Jenin Younes, Litigation Counsel, NCLA

For more information visit the case page here or 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 (September 20, 2023) — Earlier this month the federal government petitioned the U.S. Supreme Court to stay the preliminary injunction issued by the Fifth Circuit Court of Appeals in Missouri v. Biden, which bars officials from the White House, CDC, FBI and U.S. Surgeon General’s office from pressuring social media platforms to censor constitutionally protected speech. Today, the New Civil Liberties Alliance, together with the Louisiana and Missouri attorneys-general, filed a response urging the high Court to allow the preliminary injunction to take effect, protecting Americans’ First Amendment rights while the litigation proceeds.

On September 8, a Fifth Circuit panel upheld the most significant components of U.S. District Judge Terry Doughty’s preliminary injunction prohibiting the aforementioned officials from pressuring, coercing, or significantly encouraging social media companies to suppress constitutionally protected speech. This decision vindicated NCLA clients Drs. Jayanta Bhattacharya, Martin Kulldorff and Aaron Kheriaty, and Ms. Jill Hines, who have all been blacklisted, shadow-banned, de-boosted, throttled, and censored on social media as part of the years-long censorship campaign orchestrated by the Surgeon General, CDC, and other Biden Administration officials. The government has failed to present a single convincing argument for staying the injunction any further.

The Biden Administration’s censorship regime has successfully suppressed perspectives contradicting government-approved views on hotly disputed topics such as whether natural immunity to Covid-19 exists, safety and efficacy of the Covid-19 vaccines, the virus’s origins, and mask mandate efficacy. The vast, coordinated, and well-documented effort has silenced influential voices including doctors and scientists like Drs. Bhattacharya, Kulldorff and Kheriaty, as well as those like Jill Hines who have tried to raise awareness of issues. The Supreme Court is unlikely to reverse the Fifth Circuit’s injunction against such abridgment of the First Amendment.

The Fifth Circuit recognized that the Plaintiffs did “not challenge the social-media platforms’ content-moderation policies.” Rather, Plaintiffs challenged the government’s unlawful efforts to influence “enforcement of those policies.” The government gravely harmed the ability of NCLA’s clients to convey their views to the public, and it deprived Americans of their right to hear opinions that differ from the government’s. Judge Doughty strikingly described the Administration’s conduct as “arguably the most massive attack against free speech in United States history” and “akin to an Orwellian Ministry of Truth.” The Supreme Court should allow the Fifth Circuit’s order enjoining that conduct to proceed without delay. Otherwise, Americans’ First Amendment rights will be denied.

NCLA released the following statements:

“Apparently the Biden Administration hasn’t gotten tired of losing. The government’s stay application is nothing more than a shameless attempt to convince the nation’s highest court to allow it to continue to violate Americans’ First Amendment rights. We’re confident the Court will recognize this and uphold the lower courts’ injunction. We look forward to seeing our clients’ rights vindicated yet again.”
— Jenin Younes, Litigation Counsel, NCLA

“The federal government has no right to police the truth or keep narratives with which it disagrees from appearing on social media. The fact that the White House, CDC, FBI, and Surgeon General’s office want to keep censoring disfavored viewpoints on social-media platforms is abhorrent. Fortunately, the First Amendment protects the rights of the people and the States to express their views and hear the views of others without federal interference.”
— Mark Chenoweth, President and General Counsel, NCLA

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

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Washington, DC (September 8, 2023) — The U.S. Court of Appeals for the Fifth Circuit has agreed with NCLA that officials from the White House, CDC, FBI and the U.S. Surgeon General’s office violated the First Amendment by coercing or significantly encouraging social media platforms to censor our clients. The panel upheld the most important portion of U.S. District Judge Terry Doughty’s preliminary injunction order in Missouri, et al. v. Biden, et al., prohibiting those officials from pressuring social media companies to suppress constitutionally protected speech. The panel decision modified the injunction against federal officials to now read:

“Defendants, and their employees and agents, shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies’ decision-making processes.”

The New Civil Liberties Alliance celebrates this landmark victory for our clients, Drs. Jayanta Bhattacharya, Martin Kulldorff and Aaron Kheriaty, and Ms. Jill Hines. At the government’s request, the Fifth Circuit stayed the order for 10 days to give the government time to petition for a writ of certiorari from the U.S. Supreme Court.

As today’s decision said, “[The platforms] gave the officials access to an expedited reporting system, downgraded or removed flagged posts, and deplatformed users.” The panel continued, “the platforms also changed their internal policies to capture more flagged content and sent steady reports on their moderation activities to the officials … through the COVID-19 pandemic, the 2022 congressional election, and [that] continues to this day.”

The Biden Administration’s years-long censorship campaign has suppressed perspectives contradicting government-approved views on hotly disputed topics like whether natural immunity to Covid-19 exists, Covid-19 vaccine concerns, the virus’s origins, and mask mandate efficacy. The vast, coordinated censorship campaign has silenced public voices including influential doctors and scientists. Drs. Bhattacharya, Kulldorff and Kheriaty, and Ms. Hines have all been blacklisted, shadow-banned, de-boosted, throttled, and censored on social media.

Importantly, the Court recognized that the Plaintiffs did “not challenge the social-media platforms’ content-moderation policies.” Rather, Plaintiffs challenged the government’s unlawful efforts to influence “enforcement of those policies.” The government gravely harmed the ability of NCLA’s clients to convey their views to the public, and it deprived Americans of their right to hear opinions that differ from the government’s. Judge Doughty strikingly described the Administration’s conduct as “arguably the most massive attack against free speech in United States history” and “akin to an Orwellian Ministry of Truth.” Today’s order should stop that conduct.

NCLA released the following statements:

“In an unprecedented, historic decision, the Fifth Circuit has recognized that the conduct of the White House, CDC, Surgeon General, and FBI violated Americans’ First Amendment rights. The government cannot coerce or encourage social media companies to censor views it dislikes. This decision vindicates the Plaintiffs’ rights and protects the free speech of all Americans.”
— Jenin Younes, Litigation Counsel, NCLA

“The Biden Administration’s coordinated censorship campaign against the American people ends today. The Fifth Circuit’s decision details blatantly unlawful conduct by multiple agencies, and its order forbids the government’s widespread contempt for the First Amendment from continuing in no uncertain terms.”
— Mark Chenoweth, President and General Counsel, NCLA

For more information visit the case page here or 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 (August 7, 2023) – The New Civil Liberties Alliance, alongside the attorneys-general of Missouri and Louisiana, have filed a brief urging the U.S. Court of Appeals for the Fifth Circuit to affirm U.S. District Judge Terry Doughty’s preliminary injunction prohibiting a number of federal agencies and government officials from pressuring or coordinating with social media companies to suppress First Amendment-protected speech. Federal government defendants in Missouri, et al., v. Biden, et al. have appealed to the Fifth Circuit to overturn the injunction, which protects Americans’ free speech rights on social media. NCLA will participate in oral arguments for this landmark case on August 10 in New Orleans.

Federal officials have threatened, pressured, and colluded with social media platforms in a years-long campaign to suppress perspectives that contradict government-approved views on hotly disputed topics like mask mandate efficacy, Covid-19 vaccine concerns and the virus’s origins. The censorship has silenced influential doctors and scientists including NCLA’s clients, Drs. Jayanta Bhattacharya, Martin Kulldorff and Aaron Kheriaty, as well as activist Jill Hines. All have been blacklisted, shadow-banned, de-boosted, throttled, and censored on social media.

The government has gravely harmed the ability of NCLA’s clients to convey their views to the public, and it has deprived Americans of their right to hear perspectives that depart from the government’s. Judge Doughty correctly determined that the plaintiffs will likely succeed in proving the government violated the First Amendment, accurately describing the Administration’s conduct as “arguably the most massive attack against free speech in United States history” and “akin to an Orwellian Ministry of Truth.”

Federal government defendants in this case have failed to provide a single example to substantiate their allegation that the injunction interferes with legitimate government speech. The government’s argument that the injunction is too vague also doesn’t hold water. Judge Doughty has been very specific in detailing what conduct the government defendants may and may not participate in, never preventing them from addressing criminal speech on social media.

NCLA released the following statements:

“The government’s unconstitutional censorship regime stifled scientific debate on topics of critical importance during the Covid era, including lockdowns, school closures, mandates, and the origins of the virus. This stifling in turn led to the adoption of policies that years later have proven more harmful than beneficial. Yet the Biden Administration wants to continue to use its clout to silence dissenters with impunity. We look forward to seeing the Fifth Circuit vindicate NCLA’s clients, who like all Americans have been victims of this unlawful enterprise.”
— Jenin Younes, Litigation Counsel, NCLA

“The government argues that it is no longer interested in prior censorship topics, that it will be harmed more than individuals if it cannot continue to meddle in social media, and that it doesn’t understand the order the judge issued. To the extent that the government addresses the substance of what it has done, it claims that its repeated threats of regulatory reprisal do not amount to coercion. But coercion is not required to violate the First Amendment, and any regulated entity would see things differently. Plaintiffs are confident that the government violated the First Amendment and that the lower court crafted an appropriate injunction.”
— Zhonette Brown, Senior Litigation Counsel, NCLA

For more information visit the case page here or 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 (July 18, 2023) – Federal government defendants in the case of Missouri, et al., v. Biden, et al. made a motion to stay a preliminary injunction that would prohibit specific federal agencies and White House officials from pressuring or coordinating with social media companies to suppress First Amendment-protected speech. The New Civil Liberties Alliance has co-filed a brief calling for the U.S. Court of Appeals for the Fifth Circuit to let stand U.S. District Judge Terry Doughty’s preliminary injunction during the pendency of the federal defendants’ appeal, thereby protecting Americans’ free-speech rights to participate in social media.

Federal officials have threatened, pressured, and colluded with social media platforms in a years-long campaign to suppress perspectives that contradict government-approved views on hotly disputed topics like mask mandate efficacy, Covid-19 vaccine concerns and the virus’s origins. The campaign has specifically targeted influential scientific figures like NCLA clients, Drs. Jayanta Bhattacharya, Martin Kulldorff and Aaron Kheriaty, as well as activist Jill Hines. All have been blacklisted, shadow-banned, de-boosted, throttled, and censored on social media.

The government has clearly violated the First Amendment rights of NCLA’s clients, seriously harming their ability to convey their views to the public. Their ordeals were a driving force in support of Judge Doughty’s preliminary injunction. Federal censorship also disrupts the states’ critical ability to hear their own citizens’ voices on significant political and social issues. Even after several months, federal government defendants in this case have failed to prove a single example in which the injunction would interfere with legitimate government speech.

In his Fourth of July memorandum ruling on request for preliminary injunction, Judge Doughty wrote, “Although this case is still relatively young, and at this stage the Court is only examining it in terms of Plaintiffs’ likelihood of success on the merits, the evidence produced thus far depicts an almost dystopian scenario. During the COVID-19 pandemic, a period perhaps best characterized by widespread doubt and uncertainty, the United States Government seems to have assumed a role similar to an Orwellian ‘Ministry of Truth.’”

NCLA released the following statements:

“The injunction allows the Government to fulfill its legitimate functions while prohibiting routine and persistent interference with First Amendment rights to free speech. It should not be stayed while this case proceeds because the injury to our clients and the American people is far greater than the non-existent harms the Government posits from prohibiting it from silencing people.”
— John Vecchione, Senior Litigation Counsel, NCLA

“Judge Doughty could not have been more careful in detailing exceptions to the preliminary injunction in order to protect valid government interests in curtailing unlawful speech. Nevertheless, the government cries wolf and claims otherwise. Apparently, what the government really wants is to continue shutting down protected speech.”
— Mark Chenoweth, President and General Counsel, NCLA

For more information visit the case page here or 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 (July 5, 2023) – Judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana has granted a preliminary injunction prohibiting several federal agencies and specific White House officials from pressuring or coordinating with social media companies to suppress constitutionally-protected speech. The New Civil Liberties Alliance, a nonpartisan nonprofit civil liberties group, celebrates this major victory for its clients Drs. Jayanta Bhattacharya, Martin Kulldorff and Aaron Kheriaty and Jill Hines in the case of Missouri, et al. v. Biden, et al.

Three of NCLA’s clients are distinguished scientists who, because of state action, were blacklisted, shadow-banned, de-boosted, throttled, and censored on social media for merely articulating views opposed to government-approved views on Covid-19 restrictions and regulations. Jill Hines was a dissenter from mandatory vaccines and lockdowns who also had her media posts throttled. Their ordeal was part of a lawless and expansive campaign by federal officials across at least eleven agencies and sub-agencies who employed illicit tactics—including coercion, collusion and coordination—on social media companies to suppress the airing of disfavored perspectives. The agencies directed such companies to censor viewpoints that conflicted with federal government messaging on topics ranging from Covid-19 to elections.

Judge Doughty’s new order applies to agencies including the Department of Health and Human Services, State Department, Centers for Disease Control and Prevention, Cybersecurity and Infrastructure Agency, FBI and officials like White House Press Secretary Karine Jean-Pierre and Counsel to the President Stuart Delery. They are prohibited from threatening, pressuring, or coercing social media companies to suppress or remove posted content featuring protected speech.

In his timely July 4 memorandum ruling on a request for a preliminary injunction, Judge Doughty wrote, “Although this case is still relatively young, and at this stage the Court is only examining it in terms of Plaintiffs’ likelihood of success on the merits, the evidence produced thus far depicts an almost dystopian scenario. During the COVID-19 pandemic, a period perhaps best characterized by widespread doubt and uncertainty, the United States Government seems to have assumed a role similar to an Orwellian ‘Ministry of Truth.’”

In the measured order of injunction Judge Doughty did not prohibit the traditional government functions of informing media, social or otherwise, of criminal activity, or national security threats on their platforms, including illegal foreign efforts to suppress voting. In short, criminality can be challenged, not dissent.

Judge Doughty’s decision is the latest in a string of recent NCLA victories. On Friday, the U.S. Supreme Court ruled that the Biden Administration’s student loan debt cancellation plan was unlawful, and NCLA had filed an amicus curiae brief advocating for that outcome.

NCLA released the following statements:

“This Order rests squarely on the First Amendment’s protection of speech and the traditional wide-ranging views it allows to circulate in this country. Our clients were not saying or doing anything remotely unlawful. But because the Government disagreed with their views they were thrown out of the modern public square. That should not happen in America, and with this Order, it won’t.”
— John Vecchione, Senior Litigation Council, NCLA

“Judge Doughty’s ruling in the Missouri v. Biden case reinforces what the New Civil Liberties Alliance has been saying from the start of this case. The federal government has been deliberately censoring speech protected by the First Amendment. Its conduct has not merely threatened free speech; our government has actively suppressed free speech in an orchestrated, unprecedented and entirely unlawful manner. The Biden Administration’s outrageous assault on the Constitution and on the civil liberties of Americans must end. Judge Doughty’s preliminary injunction will help immensely.”
— Mark Chenoweth, President and General Counsel, NCLA

For more information visit the case page here or 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 (March 23, 2023) – NCLA has released six video depositions taken in its federal lawsuit, State of Missouri, et al. v. Joseph R. Biden, Jr., et al., which provide more clarity on the role that government actors, including Dr. Anthony Fauci, played in censoring people on social media during the pandemic. Earlier this week, Judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana denied government defendants’ motion to dismiss, ruling that the case shall continue: “The Court finds that the Complaint alleges significant encouragement and coercion that converts the otherwise private conduct of censorship on social media platforms into state action, and is unpersuaded by Defendants’ arguments to the contrary.”

NCLA, the Attorney General of Missouri, and the Attorney General of Louisiana conducted depositions of Elvis Chan – FBI Supervisory Special Agent, Carol Crawford – CDC Chief of the Digital Media Branch, Dr. Anthony Fauci – NIAID Director and White House Chief Medical Advisor, Daniel Kimmage – Acting Coordinator of the State Department’s Global Engagement Center, Brian Scully – Cybersecurity and Infrastructure Security Agency, and Eric Waldo – Senior Advisor to the Surgeon General of the United States.

As revealed in Elvis Chan’s deposition, the FBI played a major role in working with Big Tech companies to censor speech. Actions ranged from weekly meetings with social media companies to demanding takedowns of specific accounts and facilitating suppression of certain stories. Chan observed that the platforms became far more aggressive in removing misinformation during the 2020 election cycle than in previous election cycles, and they have remained so.

In his deposition, Dr. Fauci testified “I do not recall” 174 times, and “I don’t remember,” at least 212 times. Other evidence—including his own emails and past statements—cast substantial doubt on Dr. Fauci’s claim to have a failing memory. Moreover, his deposition testimony—that he genuinely believed Covid had natural origins—conflicts with emails he exchanged with scientists in early 2020, indicating that he believed the lab leak hypothesis could be accurate. Those emails suggest Dr. Fauci and other scientists made a concerted effort to conceal that information from the public by commissioning scientific papers purporting to confirm that the virus came from a wet market, possibly because they had funded gain-of-function research and feared being held responsible for the pandemic.

This subject, along with many others, are thoroughly discussed in the recently filed Supplemental Preliminary Injunction Brief and Proposed Findings of Fact in this case. These extensive new filings are the first written documents to put together all major facts gathered through discovery and from the depositions thus far. They paint a comprehensive picture of an administration and federal officials engaging in a lawless, expansive censorship campaign that employed illicit tactics against social media companies to suppress the airing of disfavored perspectives on Covid-19 and certain other topics.

NCLA released the following statement:

“These depositions further confirm what other discovery in the case has already demonstrated: dozens of members of the federal government, including unelected bureaucrats like Dr. Fauci, orchestrated a campaign to shut down debate about Covid-19 related subjects, and they deceived the American public on issues ranging from the lab leak theory to efficacy of masks to the protection offered by naturally acquired immunity to whether the vaccines could prevent disease transmission. Now that the judge has allowed this case to proceed, we look forward to learning even more as the case enters the merits discovery phase.”
— Jenin Younes, Litigation Counsel, NCLA

 For more information visit the case page here or 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 (March 20, 2023) – In a thorough and well-reasoned decision, Judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana has denied government defendants’ motion to dismiss in State of Missouri, et al. v. Joseph R. Biden, Jr., et al. The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, represents renowned epidemiologists Drs. Jay Bhattacharya and Martin Kulldorff, as well as Dr. Aaron Kheriaty and Ms. Jill Hines, in a lawsuit that has exposed an elaborate, multi-agency federal government censorship regime. Judge Doughty wrote, “The Court finds that the Complaint alleges significant encouragement and coercion that converts the otherwise private conduct of censorship on social media platforms into state action, and is unpersuaded by Defendants’ arguments to the contrary.”

Discovery in the lawsuit unequivocally establishes that at least eleven federal agencies and sub-agencies, including CDC and DHS, directed social media companies to censor viewpoints that conflict with the federal government’s messaging on topics ranging from Covid-19 to elections. Federal officials engaged in a lawless, expansive censorship campaign that employed illicit tactics—including coercion, collusion and coordination—on social media companies to suppress the airing of disfavored perspectives on Covid-19 and other topics. As a direct result of state action, NCLA’s clients were blacklisted, shadow-banned, de-boosted, throttled, and censored, merely for articulating views opposed to government-approved views on Covid-19 restrictions and regulations. Judge Doughty held that “Plaintiffs have plausibly alleged state action under the theories of joint participation, entwinement, and the combining of factors such as subsidization, authorization, and encouragement.”

In confirming Plaintiffs’ standing, Judge Doughty said, “The threat of future censorship is substantial, and the history of past censorship is strong evidence that the threat of further censorship is not illusory or merely speculative.” Judge Doughty also found Plaintiffs’ alleged injuries-in-fact are “redressable by the Court,” and that Plaintiffs had demonstrated sovereign immunity does not bar their First Amendment, ultra vires, or APA claims.

NCLA looks forward to continuing to litigate this vitally important First Amendment case before the Court. 

NCLA released the following statements:

“The US government used its vast power over social media and big tech to censor legitimate scientific and policy discussion about Covid during the pandemic. This was a gross violation of basic American civil liberties. Had free speech been permitted instead, perhaps many fewer Americans would have been harmed by destructive and epidemiologically useless policies like lockdowns, school closures, vaccine discrimination, toddler masking and much else. Missouri v. Biden is the most important First Amendment legal case in a generation, and I am pleased that it will be proceeding forward.”
— Dr. Jay Bhattacharya, Plaintiff, State of Missouri, et al. v. Joseph R. Biden, Jr., et al.

“Today’s remarkable decision marks an important victory for free speech in America. Unlike other courts before it, the district court recognizes that the federal government’s massive, far-reaching campaign of coercion and pressure on social media platforms to censor views that threaten the administration’s agenda is unlawful and violates our clients’ First Amendment rights.”
— Jenin Younes, Litigation Counsel, NCLA

“The Court has seen through the government’s unrelenting efforts to deny responsibility for using its vast power to silence thousands upon thousands of Americans online, often removing factually true information the government did not like. The ruse that it was just a coincidence that all the tech companies silenced the same people saying the same things at the same time has been exposed for the canard it is. This was a whole-of-government effort to take true information from the public square, which the Constitution does not countenance.”
— John J. Vecchione, Senior Litigation Counsel, NCLA

“The federal government must not play any role in policing or tampering with lawful, private speech on social media. The government cannot use private companies as proxies to do indirectly what the Constitution forbids it from doing directly. The First Amendment has no secret back door through which governments can manipulate social media messages—especially not to ban or censor disfavored viewpoints on Covid-19 or other topics.”
— Mark Chenoweth, President and General Counsel, NCLA

For more information visit the case page here or 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 (September 1, 2022) – The New Civil Liberties Alliance, the Attorney General of Missouri, and the Attorney General of Louisiana, have filed a lawsuit that blows the lid off a sprawling federal censorship regime that will shock the conscience of Americans. The joint statement on discovery disputes in the lawsuit, State of Missouri ex rel. Schmitt, et al. v. Joseph R. Biden, Jr., et al., reveals scores of federal officials across at least eleven federal agencies have secretly communicated with social-media platforms to censor and suppress private speech federal officials disfavor. This unlawful enterprise has been wildly successful.

Under the First Amendment, the federal government may not police private speech nor pick winners and losers in the marketplace of ideas. But that is precisely what the government has done—and is still doing—on a massive scale not previously divulged. Multiple agencies’ communications demonstrate that the federal government has exerted tremendous pressure on social-media companies—pressure to which companies have repeatedly bowed.

Discovery has unveiled an army of federal censorship bureaucrats, including officials arrayed at the White House, HHS, DHS, CISA, the CDC, NIAID, the Office of the Surgeon General, the Census Bureau, the FDA, the FBI, the State Department, the Treasury Department, and the U.S. Election Assistance Commission. Communications show these federal officials are fully aware that the pressure they exert is an effective and necessary way to induce social-media platforms to increase censorship. The head of the Cybersecurity and Infrastructure Security Agency even griped about the need to overcome social-media companies’ “hesitation” to work with the government.

These actions have precipitated an unprecedented rise in censorship and suppression of free speech—including core political speech—on social-media platforms. Many viewpoints and speakers have been unlawfully and unconstitutionally silenced or suppressed in the modern public square. This unlawful government interference violates the fundamental right of free speech for all Americans, whether or not they are on social media. More discovery is needed to uncover the full extent of this regime—i.e., the identities of other White House and agency officials involved and the nature and content of their communications with social-media companies.

The government has been uncooperative and has resisted complying with the discovery order every step of the way—especially with regard to Anthony Fauci’s communications. Defendants claim, for example, that White House communications are privileged, even though such privilege does not apply to external communications. The U.S. District Court for the Western District of Louisiana should overrule the government defendants’ objections and order them to supply this highly relevant, responsive, and probative information immediately.

NCLA released the following statements:

“If there was ever any doubt the federal government was behind censorship of Americans who dared to dissent from official Covid messaging, that doubt has been erased. The shocking extent of the government’s involvement in silencing Americans, through coercing social-media companies, has now been revealed. These bureaucrats continue to resist efforts to expose the degree of their unconstitutional actions every step of the way.”
— Jenin Younes, Litigation Counsel, NCLA

 “The incredible extent of government interference with the speech rights of Americans must be seen to be believed. Yet, even with all that this case has revealed, the government defendants are still resisting their obligation to disclose the names of all the public servants who were involved in this unlawful scheme.”
— 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