Lawyers for RFK Jr., CHD Present Oral Arguments in Landmark Censorship Case
A three-judge panel must decide if Robert F. Kennedy Jr. and Children’s Health Defense have standing to sue the Biden administration for colluding with social media companies to censor speech.
The 5th Circuit U.S. Court of Appeals late Tuesday heard oral arguments in the landmark censorship case, Kennedy et al. v. Biden et al.
The hearing focused on two points, Kim Mack Rosenberg, Children’s Health Defense (CHD) general counsel, told The Defender. First, the 5th Circuit is considering whether to uphold a lower court’s August decision that two of the three plaintiffs — Robert F. Kennedy Jr. and CHD — have legal standing to bring the suit.
Second, it’s considering whether to uphold the Lousiana court’s injunction, which would prohibit the Biden administration from coordinating with social media companies to censor Kennedy and CHD’s social media posts until the lawsuit is settled.
The case — brought by Kennedy, CHD and news consumer Connie Sampognaro — alleges that President Joe Biden, Dr. Anthony Fauci and other top administration officials and federal agencies “waged a systematic, concerted campaign” to compel the nation’s three largest social media companies to censor constitutionally protected speech.
During Tuesday’s hearing, Jed Rubenfeld — Yale law professor and attorney for the plaintiffs — told judges, “District court called this the most massive attack on free speech in this nation’s history, and it would be shocking if no plaintiff in the country had standing to challenge it.”
Standing is the legal doctrine that requires plaintiffs to be able to show they have suffered direct and concrete injuries and that those injuries could be resolved in court.
The issue of standing shut down another related government censorship case, Murthy v. Missouri. The plaintiffs in Murthy v. Missouri — the states of Missouri and Arkansas, Drs. Jay Bhattacharya, Martin Kulldorff and Aaron Kheriaty, The Gateway Pundit’s Jim Hoft and health activist Jill Hines — argued that the censorship they experienced on social media could be tied to government action and that they were likely to be censored in the future. In June, the U.S. Supreme Court ruled the plaintiffs didn’t have standing to bring their case.
The Murthy — originally Missouri et al. v. Biden et al. — and Kennedy v. Biden cases were consolidated because they shared common legal and factual issues. This allowed them to share processes, such as discovery of evidence. However, they continued to be heard and ruled on separately.
The plaintiffs in Kennedy v. Biden are much more likely to be able to prove standing than the Murthy v. Missouri plaintiffs, Mack Rosenberg said:
“With the Supreme Court’s decision in Murthy v. Missouri in the forefront on the issue of standing, we believe that the plaintiffs in our action have clearly demonstrated standing more than sufficient to meet the requirements the Supreme Court described in Murthy in June.”
Mack Rosenberg said there is clear evidence that plaintiffs Kennedy and CHD were specific targets of censorship and that they continue to be censored. “CHD in particular continues to be deplatformed from major social media sites with no end in sight.”
She said the facts “demonstrate that the injunction issued by Judge Doughty was appropriate given the circumstances and the government’s continued actions.”
Legal battle has dragged on for over a year
Tuesday’s hearing was the latest development in a class action lawsuit brought by Kennedy, CHD and Sampognaro on behalf of more than 80% of U.S. adults who access news from online news aggregators and social media companies, primarily Facebook, YouTube and Twitter.
The suit was filed on March 24, 2023, in the U.S. District Court for the Western District of Louisiana.
The case alleged that key officials and federal agencies in the Biden administration violated the plaintiffs’ First Amendment rights by censoring online speech disfavored by the government.
According to the complaint, “the federal government’s censorship campaign has repeatedly, systematically, and very successfully targeted constitutionally protected speech on the basis of its content and viewpoint.”
Nearly a year later, U.S. District Judge Terry Doughty issued a preliminary injunction prohibiting key Biden administration officials and agencies from coercing or significantly encouraging social media platforms to suppress or censor online content containing protected free speech.
However, Doughty stayed the injunction until the U.S. Supreme Court ruled on a similar injunction in the Murthy v. Missouri case.
After the Supreme Court on June 26 ruled in favor of the Biden administration in Murthy v. Missouri, Doughty on July 9 denied two motions by lawyers for the Biden administration seeking to overturn the preliminary injunction, which was set to take effect July 7.
Less than 24 hours later, Biden administration lawyers filed an emergency motion with the 5th Circuit, seeking to block the injunction.
The 5th Circuit on July 25 sent the case back to the Louisiana District Court to decide if Kennedy, CHD and Sampognaro have standing to bring the suit. The 5th Circuit also stayed the injunction while the case was being revisited by the District Court.
The District Court on Aug. 20 gave the plaintiffs the green light to bring their suit, ruling that Kennedy and CHD had standing. Doughty concluded that plaintiff Sampognaro does not have standing.
Lawyers disagree on whether plaintiffs have standing
In Tuesday’s hearing, U.S. Department of Justice (DOJ) attorney Daniel Tenny argued on behalf of the defendants, saying that the Murthy v. Missouri decision “foreclosed” the plaintiffs’ theories on why the plaintiffs have standing.
Rubenfeld disagreed, saying that Kennedy v. Biden plaintiffs differ in key ways from the Murthy plaintiffs. First, unlike the Murthy plaintiffs, the Kennedy v. Biden plaintiffs have a “specific causation finding,” meaning there is clear evidence that “government defendants, through threats, caused the deplatforming and censorship that they suffered.”
Second, the Kennedy v. Biden plaintiffs have evidence of ongoing injury, not just past injury:
“CHD’s deplatforming — which happened a couple of years ago — is exactly the same right now, unchanged in status as it was then. In other words, the government defendants are directly responsible for the injury that CHD is currently suffering.”
“Number three,” Rubenfeld said, “we have specific evidence of, in the event of a favorable ruling from this court, a significant increase in the likelihood of our plaintiffs receiving relief.”
“That’s the established test for redressability,” he said. Redressability means that the plaintiffs’ alleged injuries are likely to be redressed if the court grants the relief the plaintiffs are seeking.
Right now there is zero likelihood that CHD will get relief, Rubenfeld said. “CHD has been litigating against Facebook for years. They have not reinstated them.”
If the 5th Circuit issues a ruling that Facebook’s actions were likely unconstitutional and that will likely be unconstitutional if Facebook keeps on doing it, “that changes [Facebook’s] incentive and that increases the likelihood that [CHD] will be reinstated.”
In their brief, plaintiffs’ attorneys also argued that Sampognaro, who is potentially immunocompromised, has what’s called “right-to-listen standing” because she needs access to accurate information about COVID-19 and possible treatments, and the censorship has obstructed that access.
Tenny urged the court to continue blocking the District Court’s injunction. Rubenfeld argued the injunction is needed because U.S. governmental agencies are “still today” trying to influence social media platforms “to suppress speech that they deem, they call misinformation.”
He added, “But we have seen over and over again that what they call misinformation often doesn’t turn out to be misinformation and turns out to be protected speech.”
The DOJ declined The Defender’s request for comment on Tuesday’s arguments.
Watch plaintiff Connie Sampognaro’s reaction to the hearing:
The Defender on occasion posts content related to Children’s Health Defense’s nonprofit mission that features Mr. Kennedy’s views on the issues CHD and The Defender regularly cover. Mr. Kennedy, an independent candidate for president of the U.S., is on leave from CHD. In keeping with Federal Election Commission rules, this content does not represent an endorsement of Mr. Kennedy’s candidacy or his support for President Donald Trump’s campaign.
This is such a completely rogue administration that I much doubt it is complying with the injunction even now.
It is obscene that we are even discussing standing in such a blatant assault by tyrants on our most precious and vital freedom. OF COURSE Bobby has suffered "particularized harm" due to the direct connection between this farcical escapade and personal attacks on him while seeking election. Trump mislabeled a payment without any tax or other adverse consequences but was persecuted for faux election interference. Here we have blatant election interference occasioned by treasonous coopting of vital information for public health and safety. If Bobby does not prevail, we will all see yet one more instance of our government being the enemy of all the People.
Fight on! You fight for our grandchildren, and their children,,,,