Free Speech Plaintiffs Don't Want Legal Claims 'Tainted' by 'Political Wrangling'

In April, Democratic presidential candidate RFK Jr. and Children’s Health Defense moved for consolidation of their March 24 complaint against President Joe Biden and dozens of government agencies and officials, calling the two cases “substantially identical” (see 2304050007). 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. Both lawsuits allege a government social media censorship campaign targeting certain viewpoints on COVID-19 vaccines and mask mandates, among other issues.

Plaintiffs and physicians Jayanta Bhattacharya, Aaron Kheriaty and Martin Kulldorff, plus plaintiff Jill Hines, co-director of Health Freedom Louisiana, oppose the Kennedy v. Biden plaintiffs’ motion for consolidation. Plaintiffs will be “prejudiced by the unnecessary politicization of their case, as Plaintiff Kennedy’s and President Biden’s campaigns, Republican campaigns, or observing commentators bring this case into the contest between the candidates and vice versa,” said the opposition. Missouri plaintiff Jim Hoft, founder of far-right website The Gateway Pundit, isn’t part of the opposition.

Consolidation would “introduce additional delays, expense, and complication as a result of the increased likelihood of disagreements arising between Plaintiffs’ counsel,” said opposing plaintiffs. They cited plaintiffs’ motion in Kennedy seeking a “narrower injunction than in this case and to argue different interpretations of legal tests.” The court denied Kennedy’s motion to intervene “and for similar and additional reasons should reject his motion to consolidate,” the filing said.

Kennedy has access to certain documents from Missouri v. Biden involving him due to his prior motion to intervene, said opposing plaintiffs. Also, Kennedy’s theory of his case “appears to have shifted, given that he initially intervened in part to obtain discovery related to censorship of his speech,” said the opposition, “but now asserts that his claim is brought only to ensure that the rights of social media viewers and listeners are fully presented.” Those rights “are already at issue in this case,” they said. Kennedy plaintiffs “will not suffer any loss if full consolidation of the cases is denied."

Opposing plaintiffs aren’t opposed to judicial efficiency, they said. Where allegations in Kennedy copy those of Missouri, the court may require coordination of documents, discovery, deposition testimony and other procedural milestones, they said. The court has “a wide array of tools to ensure efficiency,” they said; opposing plaintiffs “merely request that it do so without prejudicing their interests.”

The DOJ called RFK Jr.'s motion for consolidation "moot" Wednesday, saying plaintiffs lack standing to bring their claims either as speakers or listeners (see 2307200057). Defendants’ opposition to a preliminary injunction motion in Missouri is pending after the 5th U.S. Circuit Court of Appeals granted the DOJ a temporary administrative stay of the preliminary injunction imposed July 4 by U.S. District Judge Terry Doughty for Western Louisiana to prevent dozens of Biden administration officials from conversing with social media platforms for the purposes of content moderation. If the court finds the Kennedy plaintiffs sufficiently established standing, defendants don’t oppose the request for consolidation, they said.