The Volokh Conspiracy
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Extra Discovery Allowed in States' Lawsuit Claiming Government "Colluded with and/or Coerced Social Media …
companies to suppress disfavored speakers, viewpoints, and contents."
Judge Terry Doughty's opinion yesterday in Missouri v. Biden (W.D. La.) discusses various matters that came out in various ways, but has this to say about perhaps the highest-profile question:
On May 5, 2022, Plaintiffs {the State of Missouri, the State of Louisiana, Dr. Aaron Kheriaty, Dr. Martin Kulldorff, Jim Hoft, Dr. Jayanta Bhattacharya, and Jill Hines} filed a Complaint against Government Defendants {Joseph R. Biden, Jr., Vivek H. Murthy, Xavier Becerra, Department of Health and Human Services, Dr. Anthony Fauci, National Institute of Allergy and Infectious Diseases, Centers for Disease Control & Prevention, Alejandro Mayorkas, Department of Homeland Security, Jen Easterly, Cybersecurity & Infrastructure Security Agency, and Nina Jankowicz, Karine Jean-Pierre, Carol Y. Crawford, Jennifer Shopkorn, U.S. Census Bureau, U.S. Department of Commerce, Robert Silvers, Samantha Vinograd and, Gina McCarthy}.
In the Complaint and Amended Complaint, Plaintiffs allege Government Defendants have colluded with and/or coerced social media companies to suppress disfavored speakers, viewpoints, and content on social media platforms by labeling the content "disinformation," misinformation," and "malinformation." Plaintiffs allege the suppression of disfavored speakers, viewpoints, and contents constitutes government action and violates Plaintiffs' freedom of speech in violation of the First Amendment to the United States Constitution….
In accordance with the previous expedited discovery order, Plaintiffs served interrogatories and document requests upon White House Press Secretary Karine Jean-Pierre {[s]ubstituted for former White House Press Secretary Jen Psaki} and upon Dr. Anthony Fauci in his capacity as Chief Medical Advisor to the President. Government Defendants have refused to provide any interrogatory responses or responsive documents, maintaining that these would be internal communications that would implicate serious separation of powers concerns, that Plaintiffs are required to exhaust other avenues for the discovery first, and that it would be unduly burdensome and disproportional to the needs of the case.
Plaintiffs maintain they have not served interrogatories, and document requests upon President Biden and do not seek internal communications—only external communications that Dr. Fauci and Jean-Pierre sent to the relevant social media platforms.
First, the requested information is obviously very relevant to Plaintiffs' claims. Dr. Fauci's communications would be relevant to Plaintiffs' allegations in reference to alleged suppression of speech relating to the lab-leak theory of COVID-19's origin, and to alleged suppression of speech about the efficiency of masks and COVID-19 lockdowns. Jean-Pierre's communications as White House Press Secretary could be relevant to all of Plaintiffs' examples. {The Hunter Biden laptop story prior to the 2020 Presidential election, speech about the lab-leak theory of COVID-19's origin; speech about the efficiency of masks and COVID-19 lockdowns; and speech about election integrity and security of voting by mail.}
Government Defendants are making a blanket assertion of all communications to social media platforms by Dr. Fauci, and Jean-Pierre based upon executive privilege and presidential communications privilege. Plaintiffs concede they are not asking for any internal White House communications, but only external communications between Dr. Fauci and/or Jean-Pierre and third-party social media platforms.
This Court believes Plaintiffs are entitled to external communications by Jean-Pierre and Dr. Fauci in their capacities as White House Press Secretary and Chief Medical Advisor to the President to third-party social media platforms. The White House has waived its claim of privilege in relation to specific documents that it voluntarily revealed to third parties outside the White House.
Government Defendants' argument that Plaintiffs must seek discovery from other sources also fails. This is expedited preliminary-injunction related discovery. This discovery was opposed by Government Defendants. This is the only chance Plaintiffs will have to get this information prior to addressing the preliminary injunction. This discovery was tailored to the facts alleged in this case. There was no requirement in this Court's order for the Plaintiffs to get this information from other sources first.
Additionally, Plaintiffs have also submitted interrogatories and production requests to the third party social medical platforms. As far as the burden to the White House, it is no more a burden than the other discovery requests Government Defendants have already answered.
Therefore, Government Defendants Jean-Pierre and Dr. Fauci shall provide answers to the Plaintiff's interrogatories and document requests within twenty-one (21) days from the date of this order….
The court also required the government to answer certain interrogatories as to "several employees of HHS which have been identified by Meta as likely engaged in responsive communications with Meta": "HHS's Deputy Assistant Secretary for Public Engagement, the head of HHS's Digital Engagement Team, the Deputy Director of the office of Communications in HRSA, and HHS's Deputy Digital Director."
Disclosure: The plaintiffs are represented in part by the New Civil Liberties Alliance; I serve on the NCLA's Board of Advisors, but they don't need to take my advice and I don't need to agree with their litigation positions. I have not been involved, even in an advisory capacity, with regard to this particular case, and was not asked to blog about it.
