DOJ Seeks Dismissal of State AGs’ Big Tech Censorship Lawsuit
A lawsuit from Republican state attorneys general claiming Biden administration officials colluded with Big Tech to censor social media information should be dismissed because the U.S. District Court for the Western District of Louisiana doesn’t have jurisdiction and the AGs failed to make a “plausible” First Amendment claim, DOJ argued Tuesday in 3:22-CV-01213 (see 2211220054).
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
DOJ asked the court to dismiss a second amended complaint from Missouri AG Eric Schmitt and Louisiana AG Jeff Landry due to the “lack of subject-matter jurisdiction and failure to state a claim.” Several “critical flaws” undermine the states’ First Amendment claim, said DOJ. Because Meta, Twitter and YouTube are private social media companies, a First Amendment claim requires the plaintiff to show the federal government has coerced those companies to adopt “precise measures,” said DOJ. “At most,” the complaint cites statements from officials expressing views on public policy and offering public information related to their expertise.
These claims are implausible absent “any allegation that federal officials stated they would impose any penalty on a social media platform that did not moderate particular user-posted content,” said DOJ: The lawsuit doesn’t make “any nonconclusory allegation that any official called on a company to take a “specific action” against any particular state plaintiff or resident. The states are essentially asking the court to take the view that any comment critical of a social media company by an official can be used as the “basis for a First Amendment claim to silence government officials of any administration,” which would set “a dangerous precedent,” said the filing.
The states allege injury to their ability to “‘follow, measure, and understand’ their residents’ speech in order to ‘craft messages and public policies,’” said DOJ. “These allegations are too conclusory and abstract to satisfy the pleading standard that applies in the context of a facial attack on subject-matter jurisdiction.”
DOJ offered “factual background,” stating that executive branch officials under the past two administrations have communicated with social media companies about “promoting accurate information and the harms of misinformation online.” Biden administration officials have encouraged Big Tech to exercise discretion when taking action against misinformation, said DOJ. The department doesn’t see any legal issue with Anthony Fauci responding to an invitation from Meta CEO Mark Zuckerberg to “participate in a video message” posted on Facebook or Fauci agreeing with Zuckerberg’s proposal to post public statements on the platform.
Statements made by federal officials in emails with social media company representatives don’t amount to “coercion,” said DOJ. The department noted that several “nearly identical First Amendment cases have been filed in district courts, and each one has “advanced a similar theory of causation, and each one has been dismissed for failure to satisfy Article III’s causation Requirement.” That includes Changizi v. Department of Health and Human Services and Hart v. Facebook Inc. The complaint lacks a direct link between federal official statements and social media company actions taken against specific individuals, said DOJ. The department dismissed the AGs’ evidence of “coercion,” including official statements about combating misinformation, suggestions about potential antitrust action against the companies and comments about the need to alter Communications Decency Act Section 230.