RFK Jr. Moves to Consolidate Social Media Censorship Suits Against Biden

Robert F. Kennedy, Jr., and Children’s Health Defense filed a notice of motion (docket 3:23-cv-00381) Saturday to move for consolidation of their March 24 complaint against Biden and numerous government agencies and individuals, saying the defendants and facts are “substantially identical. ” Kennedy v. Biden is a “First Amendment challenge to the massive, systematic efforts by the federal government to induce social media companies to censor constitutionally protected speech,” the memorandum said.

Counsel for parties in Missouri v. Biden, including defendants in Kennedy v. Biden, were consulted and don't consent to consolidation, said the Kennedy motion, “perhaps out of concern that consolidation will disrupt the pending preliminary injunction motion, currently set for hearing on May 26,” said the memorandum. Consolidation shouldn't have a disruptive effect on that motion, it said. The two actions are before the same judge.

In their Tuesday response, defendants in Kennedy v. Biden said they “expressly informed” Kennedy plaintiffs they don't oppose consolidation, but they do object to the Kennedy plaintiffs’ stated intention to file a preliminary injunction motion of their own and consolidate it with the pending motion filed by Missouri v. Biden plaintiffs.

“In light of the already scheduled proceedings of the Missouri plaintiffs’ preliminary-injunction and class-certification motions, and the voluminous filings to which Defendants already must respond,” defendants oppose the submission or consideration of additional filings by Kennedy plaintiffs on Missouri plaintiffs’ motions until after May 26, they said.

Defendants do oppose Kennedy plaintiffs’ intended submission of a separate motion for preliminary injunction, consolidation of the motion with the Missouri plaintiffs’ motion, and submission by the Kennedy plaintiffs of a motion for certification of their putative class, “before the Court hears the Missouri Plaintiffs’ outstanding motions,” said the response.

It’s not apparent that motions by Kennedy plaintiffs are even necessary, said the response. Kennedy plaintiffs don’t dispute that if Missouri plaintiffs were to prevail on their request for preliminary injunctive relief, that injunction would “redress the harms alleged by” Kennedy plaintiffs, nor do they dispute that Missouri plaintiffs’ proposed classes, if certified under Federal Rule of Civil Procedure 23, would encompass Kennedy plaintiffs, it said. Defendants asked that if the court permits the Kennedy plaintiffs to file motions for a preliminary injunction and class certification now, their responses be due no earlier than 45 days after the hearing on Missouri plaintiffs’ motion set for May 26.

The facts in the two cases are “substantially identical,” said Kennedy plaintiffs' motion to consolidate, with the “only difference” between the two being the identity of the plaintiffs and that the Kennedy case is a class action seeking declaratory and injunctive relief, not damages, said the memorandum. It noted plaintiffs in Missouri v. Biden recently moved to amend their complaint to add class claims, too, “creating yet a further commonality between the two cases.” Defendants are “virtually identical.”

Consolidation is up to the trial court’s discretion, said the memorandum, noting the 5th Circuit Court of Appeals directed district court judges “to make good use of Rule 42(a) in order to … eliminate unnecessary repetition and confusion.” Consolidation may be ordered “despite opposition of the parties,” it said.

The point of a class action is to consolidate common claims into a single lawsuit, said the memorandum. When more than one class action challenges the same conduct by the same defendants on the same grounds, “it makes no sense not to consolidate them,” it said. Consolidating similar cases “is necessary not to simply avoid waste, but to avoid utterly confusing, potentially conflicting proceedings, orders, and judgments, all adjudicating the rights of the same or overlapping out-of-court parties,” it said.

In their complaint, Kennedy plaintiffs said defendants, since early 2020, have repeatedly used destructive, coercive threats against social media companies by threatening “to repeal their Section 230 immunity” or to bring antitrust actions against them “in order to cause those companies to censor others’ protected speech,” said the complaint. Their social media “censorship of protected speech” involved “coercive threats and collusive joint action,” plus “entwinement, symbiotic relationships, statutory immunity under Section 230, mutual payments of money and other valuables, and other conduct more than sufficient to turn social-media company censorship into state action,” it said.

One of the plaintiffs in the Kennedy suit, nonprofit membership organization Children’s Health Defense, with over 70,000 members nationwide, offers “well-established standing to make the rights-of-the-viewers claims on which the First Amendment class claims in both cases will ultimately depend,” said the memorandum. By contrast, named plaintiffs in Missouri v. Biden are individuals that don’t have organizational standing to make claims on behalf of their members, it said.