First Amendment Censorship Claims Against Stanford Internet Observatory Can Go Forward to Discovery as to Jurisdiction and Standing

From Hines v. Stamos, decided today by Judge Terry Doughty (W.D. La.):

This case stems from Defendants' alleged participation in censoring Plaintiffs' speech on social media. Defendants are "nonprofits, academic institutions, and researchers alleged to have been involved in examining the issue of the viral spread of disinformation on social-media and the resulting harms to society." Plaintiffs are social media users, each with significant followings, who allege that the acts of Defendants caused Plaintiffs' disfavored viewpoints to be censored—namely their speech concerning COVID-19 and elections. As a result of this alleged past and ongoing censorship, Plaintiffs filed this putative class action lawsuit on behalf of themselves and "others similarly situated," against Defendants….

The court didn't agree with plaintiffs that they had conclusively established that the federal court in Louisiana had personal jurisdiction over defendants—but it did conclude that plaintiffs had sufficiently alleged facts that would justify further discovery as to personal jurisdiction:

To earn jurisdictional discovery, the movant must first make "a preliminary showing of jurisdiction." A preliminary showing does not require proof that personal jurisdiction exists, but "factual allegations that suggest with reasonable particularity the possible existence of the requisite contacts." In other words, Plaintiffs must state what facts discovery is expected to uncover and how those facts would support personal jurisdiction….

Plaintiffs have alleged—to the point of "possible existence"—that the Stanford Defendants effectuated censorship in Louisiana by "assigning analyst[s] specifically to Louisiana, determining whether speech originated in Louisiana, tracking the speech's spread from Louisiana, and communicating with state officials in Louisiana about supposed disinformation." And as such, Plaintiffs have adequately alleged that the Stanford Defendants' online activities may support personal jurisdiction. Limited jurisdictional discovery is thus necessary to show to what extent Defendants' online activities were "directed" at the forum state.

And the court held that plaintiffs had sufficiently alleged that they had standing to sue (which in this case means that various platforms had restricted their speech because of the defendants' actions, rather than just because of the platforms' own independent decisions), and were thus entitled to further discovery on this as well:

Defendants mainly cite the Supreme Court's ruling in Murthy v. Missouri (2024), for the proposition that Plaintiffs here lack standing because Plaintiffs' alleged injuries are not adequately traceable to the Stanford Defendants. In doing so, Defendants challenge Plaintiffs' ability to show that a "particular defendant pressured a particular platform to censor a particular topic before that platform suppressed a particular plaintiff's speech on that topic." Instead, Defendants reiterate their contention that it was the social media companies' independent idea to censor Plaintiffs' speech—if at all….

First, Defendants err in their appraisal of what Murthy said. Murthy did not say that those plaintiffs did not have standing to maintain suit. Instead, Murthy held that those plaintiffs failed to show standing sufficient for a preliminary injunction. As the instant case does not rely on the higher burden that Murthy demanded, Defendants cannot summarily demand a similar outcome.

Second, neither Missouri v. Biden nor Kennedy v. Biden have been dismissed, as Defendants argue should be done here. In fact, in November of this year, this Court ordered jurisdictional discovery on standing in the Missouri case….

Just as with personal jurisdiction, "District courts may permit jurisdictional discovery to determine whether the court has subject matter jurisdiction." But plaintiffs are "not entitled to jurisdictional discovery if the record shows that the requested discovery is not likely to produce the facts needed to withstand a Rule 12(b)(1) motion." And such jurisdictional discovery is improper "… when the proponent of such discovery only supports the request by conjecture, speculation, or suggestion." Such is not the case here.

Instead, we find that Plaintiffs have provided sufficient allegations to put beyond mere conjecture or suggestion that Defendants, through their participation in the Election Integrity Project and Virality Project, caused Plaintiffs to be censored on social media platforms. Specifically, Plaintiffs allege that Defendants were active participants, if not architects, of a vast censorship scheme, and—in collaboration with government officials—actively monitored, targeted, and ultimately induced social media platforms to censor Plaintiffs' speech (among many others). As jurisdictional discovery on the finer points of Plaintiffs' allegations can aid in establishing whether Defendants' conduct is traceable to Plaintiffs' harms, and thus, is "likely to produce the facts needed to withstand a Rule 12(b)(1) motion," such discovery warranted….

[W]e "circumscribe the scope of discovery … to only the factual questions necessary to determine [our] jurisdiction." …

For substantially the same reasons that we deny dismissal—and order jurisdictional discovery in the alternative—above, we do so too with [the Aspen Institute]. Plaintiffs have alleged—to the point of "possible existence"—that Aspen effectuated censorship in Louisiana, and that personal jurisdiction may exist. So limited jurisdictional discovery is thus necessary to show to what extent Aspen's online activities were "directed" at the forum state. As for standing, we similarly find that Plaintiffs have provided sufficient allegations to put beyond mere conjecture or suggestion that Plaintiffs' alleged injuries are fairly traceable to the acts of Aspen. Specifically, Aspen is alleged to have a "coordinating role in the EIP/VP's censorship activities challenged herein," or even more personally, "strategizing … to silence Plaintiff Jim Hoft[]," and Plaintiffs attach emails supportive of this alleged censorship coordination to their Complaint. Accordingly, Plaintiffs have "demonstrated the necessity of [jurisdictional] discovery," on the issue of standing as well….

The full list of defendants includes the Stanford Internet Observatory (and Stanford), Graphika, the Atlantic Council and its Digital Forensic Research Lab, the Aspen Institute, and associated individuals.

Keep in mind that these are just preliminary procedural decisions, and the case may eventually get dismissed on jurisdiction/standing grounds, on the grounds that defendants' alleged behavior was purely private action that didn't violate the First Amendment, or on other grounds.

Plaintiffs are represented by John Sauer, whom President-Elect Trump intends to nominate as Solicitor General; Justin Smith (James Otis Law Group, LLC); Julianna Parks (Langley & Parks, LLC); and Gene P. Hamilton, Reed D. Rubinstein, Nicholas R. Barry, Michael Ding, Juli Z. Haller, James K. Rogers, and Andrew J. Block (America First Legal).

Comments

[Stephen Lathrop]

How could there be jurisdiction if no imaginable claim by plaintiffs could overcome the 1A right of a publisher to decide at pleasure what to publish, or not to publish?

If plaintiffs are to have a claim, wouldn't their only chance for relief be with a claim against the government, for coercing a publisher?

If the government pressures a publisher to publish, or to not publish, even if the pressure is legally prohibited it seems like the publisher must remain at liberty to decide to go along, and to decide by its own lights whether it wanted to do anyway the very thing the government demands. Or even to decide it did not want to do what the government demands, but that it is wiser for the publisher as a matter of business policy, or other policy, to accede.

How can plaintiffs make it mandatory under law for a publisher to defy the government? Or, alternatively, make it mandatory for the publisher to publish the opposite of what it would prefer to publish, because the government also illegally and illegitimately insisted on what the publisher wanted to do?

Put another way, is this lawsuit better understood as a means to target 1A press freedom rights for publishers?

[Randal]

Put another way, is this lawsuit better understood as a means to target 1A press freedom rights for publishers?

Yes.

[Michael P]

That's even dumber than you usually are, and Lathrop is on his usual kick of pretending that publishers are the only people who have free speech rights.

The answer to his question is an emphatic no, especially considering that no "publisher"-like entity is party to this case. That's before we get to the usual points that Section 230 says Twitter, Facebook, etc. cannot be treated as publishers in this kind of situation, that this is approximately a state action case, and so forth.

[Randal]

no "publisher"-like entity is party to this case

That's only because they tried to go against the publishers directly and failed. Now they're trying the indirect route.

[Michael P]

And you answered "Yes" knowing that?

[Randal]

Obviously. This case is all about trying to prevent publishers from censoring stuff, even though they have a 1A right to do so.

[Michael P]

Suppose that the plaintiffs in this case get every remedy they ask for. How will that prevent a single publisher from censoring anything?

[David Nieporent]

Suppose that the plaintiffs in this case get every remedy they ask for. How will that prevent a single publisher from censoring anything?

It would not do that, but it would prevent many organizations from expressing their own opinions about what content publishers should 'censor.'

I have a 1A right to communicate with FB and advocate that FB 'censor' your speech.

[Michael P]

Suppose we accept your new goalposts, and also that the plaintiffs in this case get every remedy they ask for. How will that prevent you from communicating with FB to ask FB to censor my speech? Do you get paid by, and get significant input from, the government to communicate with FB or post here on the VC?

[Randal]

This idea that receiving government money means your constitutional rights are canceled is dumb.

Did you take the child tax credit? Then you're not allowed to vote. It's the price you pay. We can't have people voting who are under state influence.

[Michael P]

Randal makes himself dumber by the second and shows he doesn't understand the first thing about state action doctrine.

[Brett Bellmore]

Eh, he probably just doesn't LIKE state action doctrine, because it gets in the way of circumventing so many rights.

[Randal]

The state action doctrine isn't triggered by "money and input" alone. But returning to the point, this lawsuit isn't designed to win. It's designed to intimidate non-state actors and publishers with the threat of lawfare.

[David Nieporent]

How could there be jurisdiction if no imaginable claim by plaintiffs could overcome the 1A right of a publisher to decide at pleasure what to publish, or not to publish?

Merits and jurisdiction are entirely different things.

Also, they assert contractual claims, which do in fact overcome the 1A right of a publisher to decide at pleasure what to publish, or not to publish.

Also, they're not suing any publishers, so every one of your statements are irrelevant and/or nonsensical anyway.

[Stephen Lathrop]

Nieporent — Educate me. Does a court without power to grant a remedy ever have legitimate jurisdiction?

Are the contractual claims based on TOS? If so, why doesn't my proposed TOS eliminate the issue. If not, what non-frivolous basis exists for the contractual claims?

Seems like their allegations amount to nothing if they do not implicate connivance between all of, private defendants, platforms, and government.

[David Nieporent]

Nieporent — Educate me. Does a court without power to grant a remedy ever have legitimate jurisdiction?

Why do you think the court is without power to grant a remedy here? The plaintiffs are asking for injunctions against ((and nominal damages from) private entities. Of course plaintiffs' claims lack substantive merit, but that is a separate inquiry from jurisdiction.

Are the contractual claims based on TOS? If so, why doesn't my proposed TOS eliminate the issue.

It might, but again, that goes to the merits, not jurisdiction.

Seems like their allegations amount to nothing if they do not implicate connivance between all of, private defendants, platforms, and government.

Did you bother to read the complaint? They do in fact allege connivance between all of private defendants, platforms, and government. (Very poorly, and the case should ultimately be tossed on the merits. But, again: we're not at the merits stage right now.)

[Drewski]

"How could there be jurisdiction if no imaginable claim by plaintiffs could overcome the 1A right of a publisher to decide at pleasure what to publish, or not to publish?"

The publishers aren't being sued here. The claim is that the defendants illegally interfered with the publishers, causing harm to plaintiffs. This is basically an interference tort: Consider that if a book publisher canceled their contract with you, you could sue someone who improperly influenced them to do so. This is a similar claim.

That aside, this case is in a weird posture. The service agreements have an arbitration clause, and the Federal Arbitration Act says the arbitrator gets to go before the courts look at it. The court decided that it was required to rule on the clause first and held that it didn't apply. The defendants appealed, arguing that jurisdiction comes first. CA5 agreed and sent it back. Now the court must find jurisdiction before it can find that it can hear the merits. (Well, actually hear the remaining motions to dismiss, the inevitable summary motions, etc.)

If I were to speculate, I'd guess the defendants are just trying to get the hell out of the 5th Circuit if possible - understandably. If discovery shows they've communicated a lot with with state officials, then good luck.

I don't know if it will ever go to the merits, I'll be moderately surprised if there's anything to it on the merits, but not surprised at all if the MAGAs find sound bites if it does.

[Stephen Lathrop]

Consider that if a book publisher canceled their contract with you, you could sue someone who improperly influenced them to do so. This is a similar claim.

Drewski — It is not a remotely similar claim. To make it similar you would have to grant the interfering party a constitutional right to do the interference, which would then obviously not be improper.

Among all this internet platform kerfuffle, there runs a repeated thread of assumption that takes one or the other of two mistaken paths:

1. Private internet platforms are not publishers.

2. Even if they are publishers, government has power to deprive platforms of publishers' erstwhile 1A protection to edit at pleasure.

The first of those is false. The largest private internet platforms are the biggest publishers the world has ever seen.

No matter how it parades in the garb of free speech defense, the second of those is equivalent to asserting an unbounded government power of censorship.

[nonzenze]

if the pressure is legally prohibited it seems like the publisher must remain at liberty to decide to go along, and to decide by its own lights whether it wanted to do anyway the very thing the government demands

The only way to have publishers remain at liberty to decide is to ensure that the government can never do more than ask in a non-coercive way. That would assure that their decisions -- whether to accede to the request or not -- are genuinely their own. Insofar as there is doubt about whether the government's request were accompanied by implied threats, we can never really be sure.

Moreover, I expect this cuts both ways -- a publisher may see a heavy-handed government request that it would otherwise accede to and decide, on principle not to comply in order to maintain their own independence and integrity. On the one hand that might be pique, but I could see a good argument for not complying.

[Zarniwoop]

I find myself wondering who’s the Daddy TechBroBux that’s funding this litigation.

[Greg J]

Wait, let me see if I have this correct:

In a situation where public and private entities were demanding that social media companies censor people's speech, you are whining that a private entity is funding on attack on other people's speech?

GFY

You people are such hypocritical and worthless piles of shit.

[Stephen Lathrop]

Greg — It's a government court doing the attack. That's the problem.

You remain at liberty to demand the judicial system attack the 1A rights of private publishers and private research organizations. The 1A protects your right to make that demand. The courts have no legitimate power to decide in your favor. Everyone in the judicial system has sworn an oath to enforce the 1A against the government censorship you demand.

So you do not have it correct.

[David Nieporent]

Greg — It's a government court doing the attack. That's the problem.

Wow, it finally dawns on him! Now you understand why § 230 is free speech protective!

[Stephen Lathrop]

Turns out this lawsuit is but a continuation of a MAGA attack on the Stanford Internet Observatory. The attack has allegedly been directed by congressman Jim Jordan, apparently with an eye to so burden Stanford with legal defense expenses that it will back off from supporting the SIO. Earlier this summer Stanford did seem to back down, and the SIO was thus prevented from monitoring this year's election.

[Life of Brian]

with an eye to so burden Stanford with legal defense expenses

Stanford's endowment is approaching $40 billion.

I think the poor little pumpkins are in fine shape to defend that which they feel is defensible.

[SimonP]

Preposterous. Trump judge endorsing a fishing expedition.

Trump and his allies are attacking independent media and research organizations in the courts. This vexatious litigation is intended to bankrupt organizations and cow them into silence. It is a clear and present danger to free speech. When are you going to say something about it, Eugene?

[Sarcastr0]

I was going to bridle some at calling him a Trump judge...but he's the guy that went too far for the 5th Circuit on the government injunction to not have any contact with social media companies.

That takes some extremism.

And then multiple national injunctions about Covid-19, citing anti-vaxx nonsense among others.

At least he's in a 7 judge district.

[Greg J]

Turn about is fair play, asshole.

You scumbags attacked our free speech. You oftn did so w/ gov't behind the attacks.

So now you can not possibly claim it's wrong for the Trump gov't to attack your free speech.

[ReaderY]

After all, the Jews ruined Germany, so what Hitler did was only fair play, right?

And as Tony Soprano put, his problem with the FBI was that the FBI has animus against Italians.

[SimonP]

Name the relevant precedent, Greg.

There aren't billions of dollars aligned with any Democratic leader, systematically seeking to bury right-wing outlets under litigation expenses. So what the hell do you think you're talking about?

You're huffing your own paint and then blaming "the libz" for going on a crazed rampage.

[Michael P]

And by "independent media and research organizations" you mean pro-censorship, propaganda-pushing proxies for government control over speech.

[SimonP]

You people are idiotic children. I don't know how else to describe this attitude, but evil. You're celebrating the demise of the free press in this country. You don't really care if everything you believe is substantially false, fed to you by Trump and Elon.

In other countries where this has happened, the general public just learns to tune out official propaganda. They live in darkness about what's actually happening in the world. But evidently in those countries, some individuals take it upon themselves to actively promote the official line. That's who you are, here.

Selling out our republic to "own the libz." It's pathetic, traitorous, evil.

[David Nieporent]

And by "independent media and research organizations" you mean pro-censorship, propaganda-pushing proxies for government control over speech.

Calling it "censorship" is a category error; when Twitter/Facebook/etc. moderate, that isn't censorship. And therefore, when I advocate that Twitter/Facebook/etc. moderate, I am not pro-censorship.

And there are no "proxies for government control" unless government control is involved, which we've already established, it isn't.

[Brett Bellmore]

No, you're the one guilty of a category error. It's censorship when somebody censors. It's government censorship when the government censors.

Now, the 1st amendment is only directly applicable to the latter, but when the former occurs at the latter's behest, that's when the government agent issue arises: The government can't delegate to the private sector the tasks it's forbidden from undertaking in the first place.

[Life of Brian]

This vexatious litigation is intended to bankrupt organizations and cow them into silence

See my comment above about the size of Stanford's endowment.

The harsh reality is exactly the inverse of your hyperbole: supremely well-heeled groups like Stanford are gleefully conspiring to outright force -- not cow -- into silence a large number of people who they know good and well generally won't have the resources to fight back.

It is a clear and present danger to free speech.

No kidding. Which is why it's a quite glorious thing that this case somehow was able to spring into existence.

[Randal]

Oh yeah. So many people forced into silence by Stanford.

You're so spaced out they found rings around your butthole.

[Life of Brian]

Randy, buddy! It's been so long since you've last graced me with your own signature brand of vapidity. You doing ok?

[Randal]

Responses to your posts get the full amount of mental engagement they deserve!

[Stephen Lathrop]

. . . are gleefully conspiring to outright force . . .

Conspiring with whom?

[Life of Brian]

The 88-page complaint in this case walks through the who/what/where/when/how of the scheme in great detail. If you're in a pinch for time, there's a very high-level summary in the first half-dozen paragraphs.

[David Nieporent]

The problem is that nothing in there shows any "force" being used, though. Not in the first half-dozen paragraphs or in any of the remaining 467 (!) paragraphs. The first half-dozen paragraphs are of course conclusory — but so are all the others. They spend a lot of time showing that these private entities communicate with the government, which does not make their actions government actions, but also doesn't show that they somehow forced the social media companies to act.

[Life of Brian]

Yes, I haven't forgotten your long-held position on this issue. Unless you tell me Stanford recruited you to write the 12(b)(6) portion of their MTD, I'm pretty comfortable that you haven't actually analyzed all 467 paragraphs and genuinely found them all to be conclusory.

As a cross-check, if your take really were objectively correct, then the district court missed a golden opportunity to address the 12(b)(6) claims and thus make the case go away altogether in a much more efficient way than this current death-by-a-thousand-remands.

[Randal]

It is frustrating that the more "conservative" the courts become, the more willing they are to entertain frivolous grievances... as long as the partisan alignment is to the right, that is.

[Life of Brian]

Ah, so Nieporent lost the bidding war to you to write the 12(b)(6) arguments? Really heady stuff.

I looked all through the docket but unfortunately couldn't find your reply to the ~35 pages on that issue in the MTD opp -- you'd best get drafting!

[ReaderY]

What state action is alleged? How are the defendants state actors?

[Absaroka]

FWIW, from the linked order: "Specifically, Plaintiffs allege that Defendants were active participants, if not architects, of a vast censorship scheme, and—in collaboration with government
officials—actively monitored, targeted, and ultimately induced social media platforms to censor Plaintiffs’ speech (among many others)."

[Michael P]

Where did the funding for the defendants come from? I think a lot of their work was also paid for by the government in the form of grants or direct contracts.

[Don Nico]

So what? Do you have evidence that the described work was explicitly and directly funded by the contractual obligations? If so, tell us what that text reads in the case of Stanford.
If you are complaining that Stanford receives overhead funds from government contracts and grants, then your charge is false.

[Stephen Lathrop]

Absaroka — We are every one of us at liberty to try to induce private social media platforms to censor Plaintiffs' speech. And the platforms remain at liberty to do it. All courtesy of 1A press freedom.

Perhaps as I do you suppose those premises combine with platform giantism to deliver baleful influences on both individual expressive freedom, and the public life of the nation. If so, why not join with me to demand public policy to promote far more diversity and profusion among a myriad of mutually competitive smaller platforms.

[Lennyk78]

If they receive $1 of government money, they're state actors.

Isn't that the argument you leftists use to justify public accommodation laws to force bakers to make cakes to celebrate your butt buddies' sodomy based marriage?

You claim that they're state actors because they receive the protection of police, the use of public roads to their businesses, and so on and so forth.

[David Nieporent]

If they receive $1 of government money, they're state actors.

Completely wrong. Note that if it were correct, then pretty much every single person and entity in the U.S. would be a state actor. But it's not the standard. The Court has explicitly rejected that notion.

Isn't that the argument you leftists use to justify public accommodation laws to force bakers to make cakes to celebrate your butt buddies' sodomy based marriage?

That is not in fact the argument that leftists use to justify public accommodations laws. Those laws do not turn on businesses being deemed state actors. (If businesses were deemed state actors, then public accommodations laws wouldn't be needed, because the constitution would apply.)

[Lennyk78]

That is indeed the argument. They say that they're public facing businesses, and should be required to serve the entire public, because they avail themselves of public infrastructure.

[David Nieporent]

Some may raise that as a moral argument for such laws, but it is not the legal argument. Using something of the public is not an element of any of these laws.

[Don Nico]

"If they receive $1 of government money, they're state actors."
That is preposterous. You clearly have no idea of what state actor doctrine actually is in the US.

[Brett Bellmore]

"Absaroka — We are every one of us at liberty to try to induce private social media platforms to censor Plaintiffs' speech."

Not every one of us. Such of us as are government agents are actually NOT at liberty to do that.

Norwood v. Harrison, 413 U.S. 455 (1973)

""[i]t is also axiomatic that a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.""

[Malika]

So, a group of meteorologists is concerned about the amount of misinformation about severe weather forecasts. Government officials at, say, NOAA are as well, they want to make sure people get the accurate forecasts they are putting out. At the same time social media platforms don't want to be the venue for misinformation about severe weather and have policies in place to mark as dubious or take down such misinformation from their platforms.

The group of meteorologists decides to work to monitor content on the platforms. They are also in contact with officials at NOAA, asking them "isn't this a distortion, misrepresentation, etc, of your official forecasts?" The officials say "yes, we've been speaking out against these." The meteorologists go to the platforms and say "here are specific instances where content seems to be violating your own policies on misinformation on these topics". The platforms say "thanks, it's true, we don't want that on here" and they mark as dubious or take down some of the content.

What's the problem here?

[Michael P]

The problem is that your analogy is fundamentally unlike what actually happened.

[David Nieporent]

In what way?

[SimonP]

In that it leads to the wrong conclusion, obviously.

[Stephen Lathrop]

Malika — There is potentially a good objection that anyone has a right to an opinion about future weather, and it could be unwise, or unfair to some opinionators, to restrict publishing weather opinions to official forecasts.

That objection, however, does not reach the question of censorship, whether by government or by others. However unfair or unwise, private publishers remain at liberty under 1A press freedom to publish what it pleases them to publish, or to not publish what they do not want to publish.

Reasons why private publishers prefer one or the other of those remain irrelevant. They could even include a cowardly desire to accede to government pressure. If that happened, it could mean a meritorious claim might exist on behalf of some kind of claim against government, but not against the private publisher.

On questions about what to publish, the law may constrain government from too much pressuring private publishers; the law cannot require private publishers to defy government, or, for that matter, to accede to government. Under the 1A, that question remains for the publishers alone to decide.