2,002 3 3 0 4 4 5 state of Missouri at all versus Joseph R Biden Jr at all.
Mr. Tenney, you may proceed.
Thank you, and may it please the court.
Plaintiffs would be entitled to a preliminary injunction in this case if
they could demonstrate that a threat directed at conduct by social media
companies causing them irreparable injury.
They have not made any such showing despite months of discovery.
The district court nonetheless entered a preliminary injunction and
that was erroneous for several reasons.
District court exceeded the bounds of a concrete case or controversy under
Article 3 and impugned government discussion of issues of public concern.
The court's injunction cannot be reconciled with principles of equity and
cannot be reconciled with the requirements of Rule 65 of specificity.
To give just a few examples, plaintiffs have urged, for example,
that if there were a natural disaster and there were untrue statements
circulating on social media that were damaging to the public interest,
the government would be powerless under the injunction to discourage
social media companies from further disseminating those incorrect statements.
To take another example, plaintiffs urge that if in the course of a law
enforcement investigation, a government official were to conclude that it was
likely, although not certain, that posts on social media were part of a criminal
conspiracy, for example, regarding human trafficking, that the government official
would be powerless to bring those posts to the social media company's attention.
These are just some examples.
So you do not believe that either of those are covered by the exception or
exclusion specifically contained in the injunction?
Well- Those examples would not be covered by any of the exclusions?
That goes to the Rule 65 problem, Your Honor.
We don't know whether they are.
The plaintiffs have argued that they're not.
So at best- Where have they done that?
That said your hypos would not be covered?
I believe in the stay opposition and I think also in their brief.
I mean, they say that what the government can't do is discourage
the posting on social media.
I mean, the exceptions are very unclear.
And the carve out for
permissible public government speech plaintiffs have argued in their response
brief covers only things that aren't otherwise covered by the injunction.
They don't think that carve out does anything at all.
We specifically raised the question of whether it was uncertain.
They say the district court said that if it was uncertain,
then the government can't go after it.
So, and these are examples.
These are things that they have no standing to challenge,
don't cause them irreparable injury, and that are wrong on the merits.
Or it said that or the plaintiffs told you that?
I'm sorry, who is the they?
Who can't go after it?
That was confusing.
I apologize, Your Honor.
The plaintiffs citing the district court's opinion have said that they
can strew the injunction to mean that if it is uncertain whether conduct is criminal,
then it is not covered by the exemption.
Now frankly, I'm not sure whether that's true or not.
Our argument in this court is that the injunction is too vague under Rule 65.
So I'm not gonna tell you that it is or it isn't, that's part of the problem.
But the fact that the plaintiffs say that it is illustrates both the vagueness
concern and the overbreath concern and the way those two interact.
Now the problem here, just to be clear, is not just overbreath and vagueness.
It's more fundamental than that.
The reason the district court had so much difficulty crafting an injunction is that
the district court didn't actually identify specific conduct of the government
that would properly be enjoined.
The district court took a broad brush approach,
saying finding all sorts of things that the government did that it didn't like.
And then recognizing presumably that that was too broad,
then started trying to carve things out.
But that's wrong in a way more fundamental than just crafting an injunction.
That's wrong because what the district court should have been doing is looking
for specific things that the government was doing, targeting specific actions by
social media companies, causing irreparable injury to these plaintiffs.
And if it found any, it could enjoin those.
But it didn't find any, that's the problem.
You can go through the district court's opinion and look for something like that.
Or you can go through the voluminous record in this case and
look for something like that and you won't find it.
And that is the fundamental problem here with this injunction.
So is it your position that the district court could enter
an appropriate injunction here if this has just not been crafted well?
No, your honor, precisely the opposite.
My point is that if the district court were to attempt to craft an appropriate
injunction, it would have to find some conduct that was properly enjoined.
Conduct that both threatened to irreparably harm the plaintiffs and
was violated the Constitution.
So if the government, by the government, I mean high level officials at various
agencies in the administration were
asking social media people in a coercive manner,
so to propagate certain things that the government knew were untrue.
And to de-amplify certain things that it knew was true, or
didn't know for sure one way or the other, but didn't fit its message.
Would that be able to be enjoined?
Like we think of the, there's a lot of COVID information in this record,
about COVID for example.
If I understood the question correctly, one of the premises of the question was
that the government was doing it in a coercive manner.
And I think if the government was doing something like that in a coercive manner,
then that could be the subject of a proper injunction.
The problem is that what you would have to do is say,
here is what the government is doing that's coercive, and I'm enjoining that.
How do you define coercive?
I mean, coercive, I don't think there's too much disagreement on this point.
That coercive is where a reasonable person would construe it to be backed by
a threat of government action against the party if it didn't comply.
I mean, that's sort of how the district court described it.
The district court went on to talk about significant encouragement, and
we have major disagreements with the district court there.
But the examples that in the case law, for example, banned in books,
it's sending a letter and sort of threatening prosecution if you don't
comply with what the government wants.
Are the recent findings and
disclosures from recent US congressional proceedings properly before us to consider?
No, your honor, those aren't part of the record.
I take it you're talking about materials that were attached to an amicus brief.
Those are not part of the record, weren't before the district court.
There's been no effort to enter those into the record in this case.
So-
We can't take judicial notice of findings by Congress?
I mean, you could take judicial-
Particular committees of Congress, are we allowed to take judicial notice of that?
You could take judicial notice that a committee of Congress has made a finding,
if they've made a finding, that the fact of the finding,
you can't take judicial notice that everything in the finding is necessarily
true in binding on the court, and it certainly wouldn't justify the injunction
that the district court issued in this case.
I mean, my answer to your question,
which was about whether they're properly before the court, is that they're not.
And I would love to stop there, but if the court is interested,
I'm happy to discuss the materials in there.
I don't think they changed the, even if they were properly before the court,
I don't think they changed the picture very much.
I mean, what they're talking about, as I understand it, mostly relates to, I mean,
the first part of it was about COVID, of the amicus brief and the attached materials.
It's not clear that that's ongoing.
The district court didn't seem to think it was and
thought the government was gonna keep going on other subjects.
So there's that problem.
But then, even on its face, the kind of pressure that's being discussed there, and
this has been discussed in a number of cases in the Ninth Circuit in Kennedy
versus Warren and O'Hanley in the DC Circuit,
in a series of cases culminating in Penthouse, which was discussed in our brief.
The sort of pressure that we're talking about is relates to
the government is generically gonna be angry.
The government might make public statements against somebody.
If you look at those materials, they reflect a back and forth.
Facebook sometimes is willing to do what the government wants and sometimes isn't.
Facebook refers to pressure from the administration and the press,
administration and others.
These are all, I mean, the fundamental First Amendment point,
I think that the district court misunderstood here, is that when the
government, when the president or representatives of the president or
federal agencies come out and say things, they say, here's what we think is true,
and here's what we think is not true.
Or here's what we think is a good course of conduct, and
here's what we think is a not good course of conduct.
Yes, that might influence people.
People may want to get on the president's good side or
people might want just fine.
You say.
The way you say it is very, we're gonna sit down and
have a meeting or we'll pass out some document.
But what appears to be in the record are these irate messages from time to time
from high ranking government officials that say, you didn't do this yet.
And that's my toning down the language.
You didn't do this yet.
Well, haven't you done this yet?
And so it's like jump and how high.
So there's some examples like that in the record.
So it's not like we think this would be a good public policy and
we wanna explain to you why that would be a good policy.
There seems to be some very close working relationship that they're having these.
This isn't being done fast enough.
Like it's a supervisor complaining about a worker.
Do you have any comment on that?
I have several comments on that, your honor.
I'd like to comment both directly on the materials that you're talking about and
also about their- Which are in the record.
This is not the extra record.
No, I understand.
I understand.
I'm sorry to interrupt.
I understand.
I understand what you're saying.
I'm talking about the record too.
And I also wanna put them in the context of this case.
So I hope I have an opportunity to do both.
Please do.
Both talking directly.
There was a back and forth.
Sometimes it was more friendly.
Sometimes people got more testy.
There were circumstances in which everyone saw eye to eye.
There were circumstances in which they disagreed.
If you were saying we're gonna do this, if you don't do this,
we're gonna impose some penalty, some government regulation or sanction on you.
That's not the way you would go about it.
You wouldn't say I'm really mad.
You would just say do this or else and the or else would be clear.
There is no indication in this record of what the or else is.
What are they gonna do?
And then the other point I would- You have to always have the or
else at the same time if you have a long ongoing relationship.
If you're having this really long relationship,
can't the district court find and make a finding,
a factual finding that this is enough?
Because you think about, and I'm certainly not equating the federal
government to this, but this is an analogy, certainly probably an inapt analogy.
So if you'll excuse me.
Like if somebody is in these movies that we see with the mob or something,
they don't say and spell out things, but they have these ongoing relationships.
And they never actually say go do this or
else you're going to have this consequence.
But everybody just knows because they have and
I'm certainly not equating the federal government with anybody in illegal,
organized crime.
But there are certain relationships that people know things without
always saying the or else and that are familiar enough.
Your honor, our position is not that the government has to say the or else explicitly.
That's not our position.
And that's not true.
Everybody agrees on that.
But it has to be there in the background and nobody has identified what the or
else is with two exceptions that I want to discuss.
One is amendments to section 230 of the Communications Decency Act and
the other is some reference to antitrust law.
Now the idea that if you don't do exactly what this White House staffer says about
this particular thing, the President is unilaterally going to amend section 230 or
amend the antitrust laws is farfetched.
And it is not permissible for the district court to make a factual finding
that that's the case.
And the other point that I would, two other points I would make,
which more in putting it in context.
The things that they describe as the most harsh and
irate are not about conduct that causes any injury to these plaintiffs.
They're about the President's own Instagram account.
They're about efforts to obtain information from Facebook.
The plaintiffs have not raised a circumstance where they said,
here's, that sort of tone or
anger was used in connection with the things that are actually before
the court in this case.
The other thing I would like to add just in terms of putting it in context,
if the district court, we think the district court was wrong to enter any
injunction for some of the reasons that I've specified.
But if the district court thought there are a few things that happened here,
you still have to figure out what they were and we don't think there were any.
But if there are a few things that happened here that went over the line,
then it would have to say, don't cross that line anymore.
It would have to come up with some, it would have to say both,
we think this is specific conduct, I can identify with specificity,
it's creating ongoing irreparable harm, and I'm gonna tell you,
you can't do this anymore.
Mr. Kutini, your briefs really from page one, they focus intensely,
they focus intently on government's ability to make statements to the public.
At the podium today, you've mentioned your government may wanna come out and
publicly say this or that.
But I'm struck by the fact that this case involves government's private
communications with social media companies, and it seems perfectly fine.
In my view, for government to call out publicly, someone for posting or
for publishing something that government believes is false or
believes is dangerous, I think that passes First Amendment muster with flying colors.
But here you have government in secret, in private, out of the public eye,
relying on, as Judge Outrod described, fairly unsubtle kind of strong arming,
unveiled or not so unveiled threats.
That's a really nice social media platform you got there.
It'd be a shame if something happened to it.
Any response to that?
Yes, two responses.
First, I'm glad to hear, although I obviously won't try to hold you to it.
The first part of what you said, the district court enjoined a lot of things
that you just described as complying with the First Amendment by flying colors.
And so at a minimum, that part of the injunction under the premises of your
question, which again I'm not gonna try to hold you to, that would be off the table.
Do you think government public speech is enjoined here?
Is that what you're saying?
Cuz if it is, that's important for us to know.
Is that the purpose of the question?
And I want you to answer his question on the front end.
But what's the part that you think is good in his question that you think-
I mean, the district court said permissible public government speech
on matters of public concern was exempt.
I have no idea what that means.
The inclusion of the word permissible seems to make it impossible for
us to figure it out.
The plaintiffs have identified some public speech that they think is enjoined.
So if it just said public speech is exempt, then-
Well, that would solve part of the problem.
Not all of it, part of it.
Okay, I'm sorry, go ahead.
So if I could turn, that is not what it says.
It says permissible.
And the plaintiff's view is permissible,
that is that that exception literally does nothing.
So I just wanna put that out there.
Then as to the rest of it, I mean,
there were sort of several things baked into your question.
There's sort of whether it's private and
whether it's coercive, those aren't the same thing.
I'll give you an example of private communications that it would be surprising
to me if they were enjoined.
The CISA switch boarding efforts where state and local governments,
including the plaintiff states, would report things to CISA that they think are
inaccurate election information, and CISA would pass those along
to the social media companies.
I don't see any basis for saying that violates the First Amendment.
If the CDC, if Facebook comes to the CDC and says,
we're trying to figure out whether these posts are true,
can you give us scientific information that would bear on that question?
It would surprise me if the only way CDC would respond would be publicly rather
than privately.
Well, isn't it true though that time and again, that what government at first
may label misinformation or disinformation or malinformation,
always with great fervor and certitude and indignation,
is sometimes, lo and behold, vindicated as true information.
Ideas that were labeled false or later proven true.
If that happens, that doesn't change the fact that if social media companies are
making determinations, whether we like it or not, they're making determinations
about what to include on their platforms and what algorithms to use to make some
of it more prominent and less prominent.
And the social media companies have decided, and
there's basically no evidence in the record that this decision was coerced by anybody.
They decided that they wanted in some circumstances to have those decisions be
informed by government experts' views about what was true or false or
what was harmful or not harmful.
That doesn't mean they were turning over the reins to the government.
They were asking the government for information.
And now, as Your Honor says, maybe sometimes the government is wrong.
What if it's lying, does it matter if it's wrong or lying between the two?
Like if the government knows secretly that certain things do have health
consequences or don't have health consequences, but
doesn't want that to be the message, just hypothetically.
And so then says the opposite to the social media with the idea to propagate that message.
Does that matter whether they're lying or wrong between the two or not really?
That's a very different claim than a claim that it's coercive,
that they're somehow taking over the will of the social media company.
Isn't that a claim in this case?
Am I wrong?
I thought, and I'm not opining on what the truth of the matter is.
Please don't misunderstand me.
But I thought the claim in the case is, for example, and
I think that part of that great Barrington Declaration is part of this case.
Is that right?
Yeah.
And that these scientists were not saying the wrong thing.
And the scientists of the government, the allegation is new that they weren't
saying the wrong thing, but that they wanted to suppress that because it
wouldn't be good for their other scientific message.
I am not agreeing with that or disagreeing with that.
But that's one of the allegations.
And we're gonna give you more time because we haven't even talked about
standing yet.
Okay, thank you, Your Honor.
With respect to the Great Barrington Declaration,
I mean what the district court said, and I'm not sure whether the plaintiffs are
saying that it was lying, I'm not aware of evidence in the record that it was.
The place where deception came to the fore most prominently was with regard to
the FBI, which I'll get to in a second.
But with respect to the Great Barrington Declaration,
what the district court said was that the government orchestrated what they called
a takedown of the Great Barrington Declaration.
Now what the email that it was quoting actually said was a published takedown of
its premises, which is entirely different.
And what the district court said was not the government was lying and
that's why this is a problem.
What the district court said was the problem is the government's motivation
in making public statements, disagreeing.
I mean, this is at the heart of what your colleague referred to earlier.
This is where the government made public statements saying,
we disagree with some of the statements in here.
We don't think this is good policy.
And the district court said that's unconstitutional.
Now that just cannot be right.
And then when you get to the FBI, which is where the deception theme came in,
the thing that was allegedly deceptive was the FBI's refusal
to comment on a pending FBI investigation.
That's it.
That's what the district court said.
That's what the plaintiff said.
That's the whole thing.
I'm sorry, which one was this?
This is the Hunter Biden investigation.
There were questions about the laptop.
The FBI said no comment.
In the record, it's clear the reason the FBI said no comment was that the fact of
that investigation was not public and the FBI doesn't comment on public investigations.
Is it in the record?
And honestly, I don't know.
So please correct that they said, oh, you need to be very careful of these
foreign sources in the same conversations to try to dissuade any follow up on that
when allegedly there's a claim that they knew about that.
Is that in this record or is that in the publicly available information that's in
the world today that should not be considered?
I'm not sure what the same conversation you're referring to is.
With the social media people.
The record reflects that the FBI generally expressed concerns about a type of
investigation, I'm sorry, a type of conduct called hack and leak where you would obtain
illicitly materials and then leak them.
The record also reflects that the social media companies were independently already
concerned about that, at least in the view of the FBI witness.
And so the possibility of such a thing was discussed.
The record reflects that.
What's in the context of that laptop specifically since you mentioned it?
I want to be careful about saying in the context of.
There is testimony, there was public testimony in the record that someone had heard rumors
that it had to do with Hunter Biden and then a subsequent clarification by the same person
that those rumors did not come from the FBI.
And so I just want to, I mean.
At the end of the day, what the district court said and what this court is reviewing is that
they warned of hack and leak operations, which is something I would submit that the government
can do.
This is a threat to our national potential foreign influence in American elections and
the FBI can say we're worried that these sorts of things are going to happen.
We think they've happened before.
So the court can disagree and say that that's unconstitutional.
If it's not done publicly, I would strongly urge the court not to do so.
We're going to give each side five more minutes so we could just go through standing really
quickly.
You have made a lot of standing arguments that there was the lack of standing.
Are there posts made by state officials that were allegedly censored in this manner?
I get that you think it was not coercive, but assuming our spot that part, are there
government official posts from state governments?
And if so, does that, why doesn't that provide standing for the state officials?
Okay, I believe there were three that the states identified, one of which I think there
was even some dispute about whether it was really a state official.
But there were three that they identified.
I appreciate that you set aside the point that there's a dispute about whether that's
really traceable to the government.
The thing that's fatal to the state standing on this ground, which the other side didn't
respond to at all in their briefing, is they have no allegation that they have any intention
of making these similar, any other posts in the future.
And so they would have to show in order to have standing that they have a future injury,
ongoing injury attributable to government conduct.
So you're saying the federal government is not going to censor, not going to suggest
that a state government post be removed ever?
Or you're saying state government people are never going to make posts?
I don't understand what's not going to happen in the future.
It's their burden to establish standing, and they would need to say, we intend to make
posts, you know...
Well, don't all state government people make posts all the time, constantly, just like
federal government people?
And that's what they do?
Your Honor, if your point is that it should have been easy to make this allegation, I'm
not sure why it helps them.
But it's also relevant on what subjects they would make the posts, and the court would
have to evaluate whether it is more than speculative that those posts would, in fact, be subject
to both content moderation and content moderation that is based on conduct from the federal...
That is based on conduct from the federal government that's being challenged here.
And without even an allegation, here's what we plan to post on in the future.
Here's why we think the government...
We think it's going to be subject to content moderation, and here's why we think the government's
conduct in this case that we're challenging is the thing that would cause it to be subject
to content moderation.
What if the state...
Okay, the state elections person says, I think the federal government interferes in elections,
and we need to protect our local elections?
Would that be a post that could be interfered with?
Your Honor, I don't...
I mean, that goes to the substance of what the social media company's policies are going
to be in the future.
I mean, for standing purposes, I appreciate this colloquy because it highlights the problem.
The way standing is evaluated is that people come forward with declarations and they say,
here's what I wanna do, here's why I'm gonna have an injury in the future, and then a court
evaluates whether they think that it's actually true that they'll have an injury in the future.
And so to say, well, we're not gonna bother with the part where we say, here's what we
wanna do in the future, that's just fatal to their standing on this ground.
It's just...
I mean, this is...
They didn't say that they were gonna make these COVID posts about child vaccines in
the future.
Is that the problem?
Isn't that one of the topics about...
Wasn't it a state official about children's vaccines from Louisiana?
Am I wrong?
Is that not the fact?
I apologize.
I don't recall exactly what the posts are about and I don't wanna misrepresent by guessing.
But if your question is, is the problem that the record is absolutely silent on whether
they're gonna make more posts if they do on what subject and why they think those posts
would be subject to content moderation at all, much less content moderation at the behest
of the federal government, then I would say the answer to your question is yes, that is
the problem.
And if I could say one more thing about COVID.
I mean, COVID's a great example of why past content moderation may not be evidence of
future injury, much less imminent future injury that would give rise to a need for irreparable
harm.
A lot has changed in the world of COVID, both in terms of the social media platform's own
policies.
The state has stopped enforcing its COVID misinformation policy entirely without any
retribution by the federal government.
And the federal government's efforts with regard to COVID have changed with the end
of the public health emergency and there's information in the record that the district
court seemed to credit that some of the efforts that the federal government was engaged in
with regard to COVID were no longer ongoing.
And that would be relevant.
If the state said, all we're gonna post about is COVID, then you would have to say, okay,
is the fact that the federal government's doing less of this, that Twitter's not doing
it at all, does any of that matter for standing?
But we haven't even gotten that far.
Okay.
You're talking about the future.
Let's talk about the present.
Will you acknowledge that the government is still in regular contact with the social media
platforms about moderating their alleged misinformation?
Will you acknowledge that that is still going on?
I would acknowledge that there is still some contact, whether the nature of it is identical
to what has happened in the past is not, I wouldn't say that, but we're not arguing
that the government has entirely stopped communicating with social media on this point, no.
And now that...
And not because a stay is in effect?
Is that why?
I mean, that's part of it also to the extent that the government has stopped communicating
with social media.
That's part of it also to the extent that we're doing things that were covered by the
exemptions, that would have been okay too, but the stay makes it easy.
So you are still...
Not you personally, but the federal government is still continuing its day-to-day involvement.
Is that right?
Yeah.
I'm not sure what day-to-day involvement is.
We're not arguing that this case is moot.
I mean, this is another problem with the district court's analysis.
The district court's analysis of irreparable harm, talking about voluntary cessation and
whether it's moot and whether they still have standing, that's not our argument.
We're not saying all of this is over and nothing's happening anymore.
But the point is, to show irreparable injury, you have to say, here's what's gonna happen
imminently in the future.
Here's why it's likely, not just non-speculative, that it's gonna happen.
And then you have to make your showing with evidence.
And that's just one of the many problems here.
I'm over even my extended time.
I'm happy to keep talking if there are more questions.
Thank you.
You have saved time for rebuttal, so we appreciate it.
Thank you, Your Honor.
You may proceed.
Thank you, Your Honor.
It may please the court, John Sauer of Louisiana, on behalf of all the plaintiffs, appellees,
and then my colleague from Missouri, Mr. Devine, I think will address the court for five minutes
after I do.
I want to start by asking the court to imagine a scenario where senior White House staffers
contact the book publishers, Amazon, Borders, Barnes & Noble, and the United States.
And they tell them, we wanna have a book burning program.
And we wanna help you implement this book burning program.
We wanna identify for you the books that we want burned.
And by the way, the books that we want burned are the books that criticize the administration
and its policies.
And suppose they said, we wanna be partners in this book burning effort.
And when they didn't get the cooperation they wanted, for example, one time they said, hey,
here's 12 authors.
We want you to pull off the shelves and burn.
These are the really bad ones.
You gotta burn those books.
And the book sellers probably said, we don't really wanna do that.
Then two days later, the White House press secretary was at the podium and said, these
book sellers need to burn more books.
And the president supports a robust antitrust program to go after them.
So they need to do more to go after these books.
And later, they started sending emails that contained implied threatening communications
like, oh, you haven't burned enough books.
You haven't let us help you identify the books we want you to burn.
And therefore, internally, we're considering our options about what to do about it.
And when they lose their temper, they use the F-bomb against the book sellers.
And then all of a sudden, in the middle of July of 2021, there's a one, two, three public
punch where the White House press secretary and the surgeon general stayed at the podium
and they say, these books are poison and we are gonna hold you accountable, a word that
the district were expressly found carries with it the threat of consequences for letting
these books be on your shelves.
And then a few days later, the White House communications secretary also goes public
and she says, we're just exploring legal liability against you because you haven't burned enough
books.
And we're looking at repealing a piece of legislation that gives you a huge subsidy
worth billions of dollars if you don't burn more books.
And then suppose all the book sellers decided the game wasn't worth a candle and they started
complying.
And that's exactly what you see here in the record here in July of 2021, you see the platforms
having resisted the White House pressure for a significant period of time.
They complied on a number of issues, they're holding out on certain issues.
And all of a sudden, after there's those public threats combined with the private pressure
campaign that had lasted for months and months, you see the platforms just giving in.
And you see them essentially from then on agreeing with whatever the White House and
the surgeon general demanded on those particular issues.
And in particular, the White House had said, de-platform these specific speakers, Alex
Berenson, because we think he's the epicenter of disinfo that radiates out to the persuadable
public.
In other words, the most persuasive speakers, the ones who are most effective at rebutting
the government's preferred message, the White House is privately saying, take those people
down.
Tucker Carlson, why aren't you de-boosting a video by Tucker Carlson, a Fox News critic,
or Fox News host who's one of the most prominent critics of the administration.
And what you see is the platforms complying.
They're under what the district court aptly described as unrelenting pressure from the
most powerful office in the world.
And apparently, they complied.
So you see, in July of 2020...
Does it matter if they want to do it anyway?
It does not legally, but in fact, there's a factual finding that they did not want to
do this anyway.
So on both, that argument has a legal answer and a factual answer.
Under Peterson against T.D. of Greenville, the Supreme Court expressly said, if the private
party would have done it anyway, but the state action is violating First Amendment rights,
that's enough.
In back page, Judge Posner said exactly the same thing in back page.
He said, even if the threat turns out to be empty, or they would have done it anyway,
or they would have folded their tent, that's still a violation of the First Amendment.
But actually here, you have a well-grounded factual finding from the district court who
said, they wouldn't have done this anyway.
And you see this in their emails, Facebook in May 2nd of 2021 is like, we're not going
to take down the disinformation, does it?
They haven't violated our policies.
Three days later, you have the White House press secretary at the podium threatening
them with a robust antitrust program, which Mark Zuckerberg has publicly stated is an
existential threat to our company.
In the very next sentence, she says, take down the misinformation.
And then that point goes on.
So it's a targeting of specific speakers, specific content, and specific viewpoint that's
been so widespread and so effective.
It's fundamentally transformed online discourse on questions of absolutely overwhelming social
and political significance.
Do you believe that there is a fact-finding of overt coercion such that there is not a
necessity to get into whether this is encouragement and where the line between encouragement and
the various, we've gotten an education about all the historical cases regarding encouragement
versus coercion?
Both of those.
And he expressed findings of threat after threat after threat where page 22 and page
24 and page 26 of the district court's opinion, he said, this was explicitly linking a threat
of adverse legal consequences to the White House's demand to target specific viewpoints
expressed in the COVID-19 area.
Pages 97 and 99, the district court said, some explicit threats are the most obvious
form of coercion.
He's got a series of factual findings that these statements were threatening.
They were received as threats by the platforms, and the platforms acted accordingly.
They complied with the threats.
But in addition to that, he finds a whole series of implied threats.
These are the pressure statements.
This is what Judge Wilt was describing as, ah, you got a nice social media platform.
Sure would be bad if something bad happened to it.
That's exactly the tenor of these private communications as well.
Sorry, Your Honor.
So do we have to get into at all, under your theory of the case, what the line is regarding
encouragement?
You do not, because whatever that line is, these facts are way beyond it.
So if you look, for example, the threats cases, Backpage, Bantam Books, Acquetti, cases like
that, and compare this to the threat in the Backpage case.
That's a letter from a sheriff to credit card companies saying, we don't want you to visit
the Backpage, implying that there might be some federal criminal or civil liability if
they do, even though he's got no enforcement action with respect to that, and asking for
a contact person to talk to.
And you compare that to, in this case, what the district court count was, a whole series
of threats in public and in private, going after legal consequences that would have impacts
of worth billions of dollars to these companies, combined with this relentless demand for,
ah, again and again and again, from all these federal agencies, just peppering them with,
take down these accounts, take down these speakers.
You have the FBI sending one to five times per month a demand for removal of specific
speakers from dozens or hundreds at a time, going all the way back to 2018, saying, take
all this stuff down.
Can we talk about standing, please?
Sure.
I'd like to talk to the first, address the first two points that were addressed in the
questions to my colleague before.
You had asked about the state standing.
Do the states have direct censorship injuries?
The answer is yes.
They're laid forth at the Flesh Declaration and the Bosch Declaration that are in your
excerpts of record, where it talks about multiple state officials and state agencies made specific
postings on social media platforms that were taken down, and the district court expressed
reference to those, found that that was caused by federal, federal pressure.
They said, this is happening right when the federal agencies are pressuring the platforms
to take this kind of stuff down.
And this includes...
Is there evidence in the record to conclude that they were expressly caused by federal
pressure?
Yes, there's the... and what the district court cited on this is the direct, the timing,
the chronological identity.
Right when the feds are pushing them to take this stuff down, that's when these posts gets
taken down.
That's what the district court found.
That's not a clearly erroneous finding.
And in fact, you see that same reasoning in Bantam books, in Backpage, in Acquetti.
Is that the primary state standing argument?
Wouldn't that be the most straightforward?
Why wouldn't that be the...
That gets us...
If that's there, why are you not talking about that?
Absolutely agree.
The response to that is not that this didn't happen and not that the federal government
didn't cause it, because we've got a non-clearly erroneous finding that it did cause it.
Their argument is you haven't said that you're gonna do this again in the future.
And that's just wrong.
Paragraph seven of the Bosch Declaration, which is in your excerpts of record, expressly
says she is the communications director of the Louisiana Department of Justice, Louisiana
Attorney General's office.
We posted a YouTube video that's a picture of constituents talking to legislators about
mask mandates we disagree with.
That got taken down right when the White House was saying take down that kind of stuff.
And that's what the district court found.
And her declaration says, now that that's been taken down, we can't put up similar content
in the future.
So their argument is directly contradicted by the record.
That is the evidence of where the district court...
And there's a finding from the district court that the states are facing the imminent threat
of ongoing future censorship injuries.
Based on our evidence, that's not a clearly erroneous finding.
Yes, Your Honor.
With respect to the state, that you're seeking to redress is it the censorship on the social
media or the government's interference with the social media platforms content moderation?
I would say it's the...
The governmental interference has caused the censorship.
So there are no platforms that are defendants in this case.
We haven't challenged what the platforms are able to do independently.
Our argument is when the platforms make decisions, it has to be relieved from the boot of federal
pressure and federal coercion that we see going back to 2017 in this case, including
threats, secret meetings to Judge Willett's point, secret meetings starting in 2017 where
the FBI is brokering meetings and coordinating with senior congressional staffers who are
flying out to Silicon Valley.
This is all in the testimony of Elvis Chan, secretly meeting in Silicon Valley with the
senior content moderation officers of these platforms, showing them adverse legislation.
This is what we're gonna pass unless you start censoring thing.
And Elvis Chan opined, having directly participated in that process, opined that the platform's
ability, our willingness to start cooperating in the demands for censorship of election
related speech were directly caused by that pressure.
Intense pressure is what he calls it actually in his master's thesis of all places.
So we have direct findings of causation.
The district court finds that on page 134 of its opinion, that that is what caused it.
So that is what the states are challenging here.
And the state's injuries are actually fourfold.
There's the direct censorship injury.
That alone clearly gets us past the Article III threshold.
But also we've alleged that we have a sovereign interest in knowing what our constituents
think and feel about the great issues of our day.
And the, Flesch and Bosch attest that we sit on, our communications people sit on social
media all day and follow what Missourians and Louisians are savings.
And that is saying on that, that's so important.
We gotta be able to craft messages and know what policies we're adopting to be responsive
to our citizens.
We cited the Story case that radically reinforces that as a state interest.
Where he says like, going back to 1863, as everyone knows, going back to the Federalist
number 56 where Madison said it, everyone knows state legislators have a sovereign interest
in knowing what their constituents think and feel.
And that's directly impacted.
But vis-a-vis the state government, vis-a-vis the state federal government?
Yes.
So in other words, the Louisiana Department of Justice and the Missouri Attorney General's
Office put in declarations saying our communications directors follow Missourians and Louisians'
speech about COVID, about elections, about all the topics that the federal government
has interfered with here.
They follow it closely on a daily basis and it's imperative that we know what our constituents
actually think and feel.
And we can't know that because half of that stuff is being suppressed.
The viewpoints of the federal government doesn't like are just silenced on social media.
It's hard to overstate.
That's why the district court found in this case is arguably the most massive attack on
free speech rights in American history.
Let me ask you what I asked Mr. Tinney.
Are we free as a panel to take judicial notice of or otherwise consider the recent findings
or releases or disclosures from recent U.S. congressional proceedings?
Yes.
On the judicial notice point, as Judge Elrod pointed out, judicial notice is a situation
where there's no reasonable dispute about the authenticity of the document.
And if a congressional committee has released something saying this is an internal email
to Facebook, which by the way directly reinforces the evidence we have on our side, which is
the direct communications with the White House officials, the court can easily say we take
judicial notice of the fact that that's a document whose authenticity cannot reasonably
question and can weigh and consider that evidence.
And all that evidence just powerfully reinforces the overwhelming evidence of coercion we have
in this case.
You have like a really interesting snapshot into what Facebook's C-suite is saying.
They're emailing Mark Zuckerberg and Sheryl Sandberg and saying things like, you know,
why did we why were we taking down speech about the origins of COVID, the lab leak theory?
And they're like, well, we shouldn't have done it, but we were under pressure from the
administration.
That's internal emails or an internal email from Nick Clegg right after that July full
court press of pressure and threats from the White House.
Nick Clegg emails internally and he says, you know, given the other fish to fry we have
with the White House, I think we ought to deescalate here.
So exactly what you expect Facebook that totally reinforces the district court's specific findings
that these are all perceived as threats.
And that's exactly what Backpage and Bantam Books and Acquetti in cases like that say.
Well, we know this was threatening because look how they reacted.
Okay, so we have two types and you said there are four.
There's direct censorship, which is the government officials as a speaker.
There's a sovereign interest as a listener.
Yes, yes.
There's some a lot of briefing on whether listeners can be that that's good enough.
And then what's the third and the fourth?
Yeah, just on that second point was fascinating is Carol Crawford, the CDC witness in her
deposition, volunteered that she agrees with that second interest.
She said, look, I want them to take down the misinformation, but I got to know what was
censored because otherwise the CDC has to craft messages that are response to them.
So she echoes the very thing that we said in our declaration.
The third one is a closely related interest, which is the states have a sovereign interest
in having fair, free and unbiased processes to petition the government.
So one thing you see in the White House emails is the White House says we want you to crack
down on groups and Facebook groups and so forth.
And these are the things that our our Declarant Jill Hines, one of the plaintiffs in this
case said, I try to organize these Facebook groups in Louisiana and I couldn't do it.
And by the way, her most recent declaration, the one that was filed in May of this year
says this is interference is still going on.
The notion there's no more COVID censorship is is not true at all.
She says, and so as a result of that, I can't put together 18,000 Louisianans to magnify
our voice and petition the government for redress of grievances.
And that's a sovereign interest for us.
We got to hear from those people.
So it's related to the second one.
One of the amici, I guess it's the Stanford amici that was unopposed in allowing that
brief in has says factually disagrees with all of that.
We got a footnote in our brief addressing that is absolutely dead wrong.
Virtually every virtually every factual representation they make in that brief is directly contradicted
by the evidence before the district court, which includes their own public report and
their own statements.
We quoted some of those in a lengthy footnote in our brief.
And I would direct the court's attention to pages 70 to 75 and 80 to 86 of the district
court's opinion, where he makes specific findings resulting in the conclusion that CISA and
the election integrity partnership were quote, were completely intertwined.
Let me just run through some of the points of contact between the election integrity
partnership.
I think we've got to get through these other four.
Sure.
Yeah.
And then finally, we assert a quasi sovereign interest against the federal government.
They dispute that we can do that.
The parties have briefed that and actually my colleague, Mr. Devine, is prepared to address
that parents' arguments.
So he's going to talk about Breckin and whether it works.
Exactly.
Yes.
Good law.
Yes.
The CTA has not been overruled.
It's still good law directly addressed.
What's four?
That was number four, was that quasi sovereign interest.
What was three?
The state's injuries are direct censorship injuries of our own speech, interference with
our ability to hear our constituents' voices on social media, third, interference with
our ability to have a fair and unbiased process for our people to organize and petition the
government for grievances.
And fourth, those are all sovereign injuries.
And then the fourth is the quasi sovereign injury to a substantial segment of our population.
And I haven't even talked about the individual plaintiff's injuries yet.
Only one plaintiff need have standing.
The states, the individual plaintiffs alone have like obvious standing.
There's a factual finding from the district court that plaintiff Jim Hoff is currently
subject to an ongoing campaign by federal officials to target the content on his website.
And that is corroborated by the affidavit that he put in in May of this year.
He says, look at all the ongoing harassment I've been receiving.
This notion that like COVID censorship is over is totally unsupportable.
Two weeks ago, I gave a talk about this very case at NCLA, our co-counsel's office, criticizing
federal government censorship.
It was taken down the next day by YouTube.
I was censored as a lawyer for the Louisiana attorney general.
Do not tell me that Louisiana doesn't face ongoing censorship injuries as a result of
federal interference.
But the plaintiffs also have a whole series of injuries.
Go ahead, Your Honor.
Assuming, arguing no, and this is just an arguing no question, that we decide that the
individuals do have standing, but that the states don't.
Wouldn't that affect the scope of the injunctive relief?
I was looking at this morning to address that question, and I don't see how.
Because the injunction is not framed as don't do anything with respect to the states.
It just says, don't do these things that take things down from social media.
And the individual plaintiff's standing is broad enough to address all of that.
Because among other things, the second interest they address is they say, look, we follow
all these people.
Everyone that the federal officials targeted, the disinformation doesn't.
All the people listed in the reality project.
Jill Hines has a declaration.
She says, I follow 86 of these people on social media, targeted by every single one of these
federal agencies.
And the Supreme Court held very clearly in Virginia Board of Pharmacy that when you take
down Tucker Carlson, Tucker Carlson's video, it's de-boosted due to federal action.
So you never see it in your news feed.
That injures Tucker Carlson and the people who follow him, the 3 million people who follow
him equally.
They boast to have a 1st Amendment injury because the right to listen is just as fundamental
as the right to speak.
And these plaintiffs assert the right to listen.
They assert the right to listen to virtually every single one of the speakers that was
silenced by federal censorship in this case.
They follow the New York Post with the underbid laptop story being taken down.
They follow the dissent when Robert F. Kennedy Jr. is booted off of Instagram because Jennifer
Psaki demanded that they take him down.
Our plaintiffs follow Robert F. Kennedy Jr.
They're just as injured under the 1st Amendment.
And that's the second injury.
And that injury is, I think, really is so comprehensive that it just really neutralizes
all the arguments they've made about saying, oh, the injunction is too broad.
I do want to address the alleged breath and vagueness of the injunction.
What I would like to do is direct the court's attention to two sources that relate to the
alleged breath of the injunction.
If you look at the operative verbs in the injunction, the injunction says you can't
pressure, induce, encourage, or urge.
And the government says, oh, we just don't understand that.
Those verbs are too broad.
Those verbs' meaning is very plain.
It's right there in the dictionary.
They're broad, but they're not vague.
And here's evidence of that.
Norwood, the foundational case about state action.
The Supreme Court said it is axiomatic that you cannot induce, encourage, or promote.
Two of the very verbs that are in the injunction, encourage and induce, are the verbs that are
in the Norwood decision.
Another elsewhere in the injunction, it says you can't threaten or coerce.
Look at the back page decision.
At the very end of the back page decision, Judge Posner directs the district court to
enter an injunction on remand with specific language.
And here's the Seventh Circuit's approved injunction.
You shall not take any action, formal or informal, to threaten or coerce any third party not
to do business with back page.
Verbs of exactly the exact same verbs that are in our injunction have already been approved
by the Seventh Circuit and are already appearing in Supreme Court decisions.
And they say, oh, we just can't understand this.
Judge Bullitt, to turn to your question earlier, the dichotomy that we see reflected in the
injunction isn't strictly between public and private speech.
So it's very bad, it's very telling that a lot of this happened in private going all
the way back to 2017.
But a public threat, like the letter that the sheriff sent to back page in the back
page case, that was posted on his website in a news release the next day.
That was a public threat.
A publicly made threat still violates the First Amendment as long as they conceded oral
argument in the language of equity.
A reasonable observer could reasonably interpret it as intimating some kind of adverse legal
consequences.
And we have this again and again in here.
If you look at, if you imagine you're, you know, Nick Clegg of Facebook and you're on
the receiving end of all these communications, how would any reasonable social media platform
receive them as a pressure campaign, as a series of threats?
And to Judge Elrod's question earlier, we have an entirely different theory of state
action, joint participation, that doesn't even require threats or pressure, that the
district court also found all this conduct falls within.
For example, the joint participation doctrine says that if you've so involved yourself in
private decision making, then you have a state action problem.
That's exactly what we have in this case.
You have federal officials, every single one of these agencies has insinuated themselves
into the content moderation decisions of major social media platforms.
And it's occurring at the speaker-specific level when they say they're at the table when
they're deciding, do we take down this specific post?
Do we take down that specific post?
They're having big group meetings with slide decks about the post that they want to take
down.
That in sin- go ahead, Your Honor.
I'm struggling with your public, private, you used an example of a public threat.
And that was because that was a threat, that that was actionable.
But just public speech about, we want companies to moderate content because we have a suicide
epidemic of young people.
And we think you should cut down on this bullying, hate speech directed, targeted young people.
And this is a super important problem.
And we, the health officials and the president and everyone thinks this and wants to cut
down.
Now that would not be subject, should not, that's not a threat.
It's an announcement of a policy position.
That's different from a threat.
Yeah, and I think there's a Supreme Court case that addresses United States against
Williams from 2008 that talks about the difference between kind of, you know, high level advocacy
and advocacy for concrete action.
And what's prohibited by the injunction is you can't say, you can say these suicide
promoting speeches bad.
Now keep in mind this is a hypothetical and they don't contend that it ever has happened
or ever will happen.
But they say someday the Surgeon General might want to do that.
And you're weighing that against millions of actually proven First Amendment violations.
But on their hypothetical the Surgeon General can say all this speech is terrible, it's
awful, the suicide promoting speech is awful.
But what he can't do is pick up the phone and say take it down.
He cannot call the booksellers and say burn these books because these are the bad books.
He can get on TV and say these are terrible books, no one should read them, they're awful.
But he can't say pull them off the shelves and burn them.
And that's the dichotomy, right?
And keep in mind that threatening is only one of the things that's enjoined because
the district court aptly found that as the D.C. circuit held in the Philip Morris decision
that you've got to look at what the injunction enjoins in the context of the case and with
specific reference to the district court's factual findings.
So we've got 82 pages of factual findings.
When the government says we're so puzzled we don't know what this injunction requires,
the same sort of argument was made in the Philip Morris case where the injunction said
don't engage in acts of racketeering with respect to the marketing and sale of cigarettes.
And the cigarette company said we don't understand that, what does that possibly mean?
And the D.C. circuit said go read the 4,088 findings of fact that flesh that out.
And the same response is available to the government.
Here we've got 82 pages of specific factual findings that they largely ignore in their
briefing in this case and those flesh out the meaning of the injunction.
But the dichotomy is between...
Your viewpoint is does the injunction cover the two hypotheticals that Mr. Tinney began
his argument with?
The earthquake hypothetical, I think it's that same dichotomy.
You can say this earthquake related speech that's disinformation is false, it's wrong.
The government can say it's bad, but the government can't say social media platforms you need
to take it down.
Just like the government can't stand at the podium and say Barnes and Noble you need to
burn the bad books, burn the communist books, whatever it is.
They can't say take down speech on the basis of content and viewpoint.
And that's really the dichotomy that the first amendment already imposes on the government.
This isn't like a novel burden.
The notion that federal officials should be publicly saying take down social media posts
is a new thing.
It's a brand new thing that basically started after the 2016 election.
In our country we don't have a history of federal officials publicly or privately demanding
that books be burned in social media platforms.
As you know there are different merits theories at play here.
There's a coercion test, there's a joint action test.
The proper scope of the injunction might be different under one or the other.
On this record, on these facts, which do you think is most squarely appropriate?
I believe they are very clearly, I believe they are all easily satisfied.
But the district court's opinion does focus on the coercion and pressure.
So he views those as related tests, right?
There's a ton of coercion.
And when he gets a significant encouragement he says if there is ever a case where significant
encouragement applies, this is it.
So even if you say well some of these statements were too fuzzy to turn out to be threats,
we have explicit factual findings to the contrary again and again throughout the opinion.
But even if that were determined, he's like at least they're significantly encouraging
it.
They're bombarding them month after month after month.
There's meeting after meeting after meeting.
The FBI has been meeting with the senior content moderation officials of social media platforms
on a monthly basis going back to 2018 or 2017.
And in all these meetings they're talking about here, so what do you want to take down?
Will you take this down?
And in connection with that they're sending them encrypted lists of all the stuff they
want them to take down.
CISA is engaging in this switchboarding.
CISA sets up the election integrity partnership to do the mass surveillance of the government,
lacks the resources, and lacks the legal authority to do, and has worked tightly arranged to
engage in bombarding them with trying to throttle entire narratives that it might have a million
posts at a time.
I'm sorry, Your Honor, I thought you might have a question.
In any event, so I would say they're all applicable.
The notion that this is, I mean how can you have more joint participation when you have
meetings where the federal officials and the content moderation officials are all sitting
there talking together?
You have the White House saying we've got to be partners.
We want you to be partners.
And when the Facebook finding collapses, it says we want to meet with you and understand
what the White House expects of us going forward.
That's coercion.
That is significant encouragement, and that is also joint participation, joint action.
It easily satisfies all of those.
And because there's this long history of threats, coercion, and encouragement, the district court
says look, you can't tell them anymore to take down the content and the viewpoints that
you don't like.
We are looking at a situation where the injunction is broad because the misconduct is so broad
it's enormous.
And this again is the Philip Morris decision.
The D.C. Circuit said that.
They said, yeah, this is a really, really broad injunction, but you know what?
We've got dozens of pages of factual findings showing that you engage in misconduct for
years.
Here the district court has unrebutted factual findings of millions.
That's the quote.
Yes, Your Honor.
The complaint doesn't even mention WhatsApp and TikTok and Snapchat, many other very popular
social media platforms.
But the injunction does include that.
How is that appropriate?
The complaint talked about social media platforms generally.
But it does not include those specific ones, and the plaintiffs don't have accounts on
or it's not listed that they do.
As we pointed out in the brief, we have accounts, the plaintiffs say they have accounts in about
seven of those.
There's a finding, for example, that the FBI is meeting with seven major platforms.
The Election Integrity Partnership had nine major platforms that include TikTok, Reddit,
Nextdoor.
Another injunction when the plaintiffs don't even have accounts on for those and they're
not covered by the complaint.
Is that over broad?
No, because we have evidence that the state communications directors monitor speech across
social media platforms.
And of course, what happens on social media is that content is cross posted, right?
A TikTok video gets reposted on Twitter.
Why isn't it covered good enough for your purposes if it covers it from the ones that
your clients have?
Well, my client is in the state of Louisiana.
What the state of Louisiana says is we look at all of them, right?
I mean, that's if you read the Bosch and Flesh Declaration, they say we're monitoring social
media activity across these accounts.
And the plaintiffs say, hey, we've got accounts on seven of these.
And then the evidence shows that the EIP is involved in nine of them.
All the ones you mentioned are right there in the evidence with the federal government
directly interfering with speech on those platforms.
So there's at least nine in the record, seven or eight that sits in the FBI meet with, nine
that are affected by the Election Integrity Partnership.
And also keep in mind that the government makes a lot of threats that are addressed
to platforms generically.
It doesn't just say, hey, Facebook do this.
It says platforms do this.
I see my time has expired.
Was the activity of the FBI as egregious as the activity of the White House?
They're different.
And I believe they're both very egregious.
The FBI engage in deception.
So with, for example, with respect to the Hunter Biden laptop story, they said all they
did was to decline a common opinion investigation.
That's obviously not true.
There's lengthy findings about this in the district court's opinion.
He said they deliberately seeded the platforms with misleading information that a hack and
dump operation is coming.
A hack and dump operation is coming.
There's rumors it's going to involve Hunter Biden guys.
And they say these are on the agenda of the emails that we have in discovery or in the
record saying the hack and dunk operation is coming.
And then when the story and they have a laptop in their possession, there's a finding of
that effect.
They knew that it wasn't Russian disinformation.
And then having primed the primed the platforms to expect it as a hack and dump operation
would actually hit.
Then they said, is this Russian disinformation?
There's a no comment, no comment.
The district court found that was a deliberately misleading course of deception.
He also found that deception is just another form of coercion.
So that was deception.
And you see this also with respect to the Great Barrington Declaration, explicit findings
of providing deliberately for providing false information with the purpose of inducing them
to silence and stifle Americans free speech that violates the first amendment.
Thank you.
Mr. Devine, may it please the court, Joshua Devine, Solicitor General of Missouri.
I want to focus just on state standing and dive a little bit deeper into some of the
arguments that my colleague, Mr. Sauer already are already previewed.
Are you going to rely on the parents, Patria, or you want to not focus on that one?
I don't think we need to rely on parents, Patria.
I want to make a couple points about that.
But we have a million and a half different theories of standing where there isn't any
circuit split.
So I'd prefer the court to go with one of our other theories of standing.
That's not your strongest one and you want to move on.
Exactly.
So I do want to leave the court today with two key points.
And one of those will be a little bit about parents, Patria.
First, the federal government's actions have harmed the ability of the states to operate
as sovereigns.
And second, if we get into parents, Patria, every single time that a state has asserted
a quasi sovereign harm, every single time, the Supreme Court has allowed that case to
proceed under a parents, Patria theory.
So on the issue of sovereign harms, there are sort of two sovereign harms here.
My colleague, Mr. Sauer, addressed a number of them already with the state's own speech
being taken down.
There is a finding on page 138 of the court's opinion where the court says the court makes
an express finding that this is likely to continue in the future.
There are a lot of the reasons that the court has already said.
Every official in every state is constantly posting on social media.
This stuff gets taken down all the time.
Other than the one affidavit and the one paragraph, is there anything else in the record to support
that?
I think the chronology of, like my colleague, Mr. Sauer, said, the chronology here shows
that this is related to all of the other suppression that the federal government is responsible
for.
So we're posting a lot of, we're posting public meetings in front of local county governments,
things of that nature, where individuals are coming to speak, the individuals who are being
censored over these matters.
Are they still getting taken down?
I think the most recent example is my colleague, Mr. Sauer's take down just a couple weeks
ago.
Now, there's a second aspect of sovereign harm as well.
The Supreme Court has long recognized what James Madison said in Federalist 56 and what
courts have said for centuries.
Government cannot function unless individuals are able to freely speak in the public square.
Here's what the Supreme Court said about this in 1949.
The vitality of civil and political institutions depends on free discussion.
It is only through free debate and free exchange of ideas that government remains responsive.
So when the federal government blocks individuals like Plaintiff Jill Hines from organizing,
speaking to the community, speaking to the government, it deprives the states of the
information we need to exercise our sovereign functions.
That is more than enough.
I note also, it doesn't matter whether this is on Twitter or TikTok or anywhere else.
All of these are part of the public square under the Packingham case from the Supreme
Court in 2017.
How is this theory of third party standing materially different than a parents-patriot
argument?
So in the parents-patriot, the snap decision at page 602 makes clear that the doctrine
of parents-patriot only applies for two kinds of harms, a purely third party harm or a quasi-sovereign
harm.
So with respect to our sovereign harms, the entire doctrine just doesn't apply.
We're not under parents-patriot, we're under Kowalski instead.
We're under First Amendment third party standing, which the Supreme Court has said is, quote,
quite forgiving.
So we don't need to have our own First Amendment right.
We just need to have an Article 3 injury that is related to somebody else's First Amendment
right.
And here our injury flows from the First Amendment violations experienced by individuals.
So now my colleague on the other side says, well, you can only assert this if there's
an enforcement action against the plaintiff.
And that's not true.
Bantam Books expressly rejects that idea.
So in Bantam Books, you have a New York company that is challenging a Rhode Island statute
that has been enforced against a Rhode Island company.
And the Supreme Court says, well, it doesn't really matter that this isn't being enforced
against you, the plaintiff, because the First Amendment violation against the Rhode Island
company is having an economic downstream Article 3 injury on you, the plaintiff.
So you can exercise third party standing in the context of the First Amendment to sue
over that.
Your theories mean that, sorry, the states would have standing to sue the social media
companies directly, even if the remedy might be a little different?
I think there might be a situation where you can bring a challenge under a federal statute
where they're operating under color of law because of a joint participation theory.
Obviously, we haven't done that here.
I think that would be a, the theories would be quite different in that kind of circumstance.
Do, quick follow up, do each of your sort of theories of standing, do they independently
justify the injunction in its full A to Z scope, or do some theories only support certain
aspects of the injunction?
I agree with my colleague, Mr. Sauer, that each of these individually supports the entire
injunction.
I think it's easiest and clearest to see what the states, between the two states we
have today, we have millions of people involved.
I don't see any way where you couldn't have this exact injunction, especially if you have
state standing.
I understand, I see my time has expired.
I'm happy to answer some questions about parents' monitoring.
You said especially if we have state standing.
What if you don't have state standing, despite your points today?
I agree with my colleague, Mr. Sauer, that there's nothing in the injunction that is
pertained to the states specifically, especially given how much each of these individuals are
following, dozens, hundreds, thousands of other individuals.
So it's based upon their followership.
What is the best case?
It says a following is good enough for an injunction in this type of First Amendment.
The Virginia Board of Pharmacy case expressly recognizes this ability to, this First Amendment
right to listen, to receive information.
Now the other side says, well, it depends on what the targeted audience is.
And here, well, the targeted audience is anybody on social media who wants to follow this.
So we're in a totally different area than we would have been 20 years ago, 30 years
ago before social media, because social media has just broadened dramatically the kinds
of audiences.
I'm happy to answer a couple of questions on parents' pottery if the court desires.
Well, I said you keep bringing it up.
Massachusetts v. EPA, is it even a parents' pottery case?
You know, we were just talking about Brakeen, and that is definitely a parents' pottery
decision.
But is Massachusetts v. EPA a parents' pottery case?
It certainly does still exist.
It is, and it's not even the first.
It's the second.
The first is Nebraska against Wyoming from 1995, where Wyoming brings a cross-claim,
a counterclaim against the federal government.
And on page 20 of that opinion, the Supreme Court expressly says, well, they're bringing
a quasi-sovereign interest here, so we will allow this to proceed.
Massachusetts against EPA, same thing.
Like we do here, Massachusetts asserted a number of different injuries.
One was a quasi-sovereign injury.
But yeah, but mostly it's the injury to the state from the environmental harm.
Yes, that's right.
And the Supreme Court in footnote 17 of that opinion says that this is a quasi-sovereign
interest.
They distinguished this from Mellon, which expressly said it did not involve a quasi-sovereign
interest.
And the same thing is true in Bracken as well.
If you look to footnote 11 of that opinion, the Supreme Court faults Texas for raising
only purely private claims.
It says Texas hasn't raised, it did not raise anything that, quote, involved a concrete
injury to the state.
That's the problem in Texas.
Now you do have this quote that the other side relies on where it says, you can't bring
a parent's portrayal action against the federal government.
And of course, we pointed out that in SNAP and Kentucky against Biden, there are two
different kinds of parent's portrayal actions.
So I would just focus this court's attention on the recently decided Supreme Court case
Turkigal-Halke-Bunkasi, please don't make me say that twice, where the court says, general
language and judicial opinions should be read as referring in context to circumstances similar
to the circumstances then before the court.
And not referring to quite different circumstances the court was not then considering.
The Mel and Barb.
We have your argument.
Okay.
Thank you.
Thank you very much.
Thank you.
We appreciate it.
You saved time for rebuttal.
Thank you, Your Honor.
Thanks for the extra time.
Oh, sorry.
I wanted to start by talking about the facts.
The plaintiffs cite the district court's findings and then they cite their own in their brief,
largely their own findings, proposed findings of facts.
And it's really important to look past those and look at the underlying documents that
are in the record, because as we pointed out in our brief, and I'm not sure the plaintiffs
really dispute this, there are circumstances in which those things do not match up.
And a couple of them came up from the podium today.
I'll just point those out as examples, but my general point here is, you know, there's
a voluminous record of documentary evidence.
The plaintiffs had proposed findings.
The government had responses to those.
And the proposed findings cite particular materials.
And so just to give two examples that came up from the podium.
The first was the district court's finding about what it means for somebody to be accountable.
The citation's a little confusing there, but I think what the district court was referring
to was 14822 of the record with the deposition of Mr. Waldo.
And what he said, the question was, do you agree that accountability includes accepting
the consequences for when you do something wrong or inappropriate?
And he agreed with that.
Now that's accountability in the sense of, you know, I'm accountable for, you know, in
another place in the record, President Biden said, you know, people should look in the
mirror and, you know, they should be accountable in that sense.
And so the district court said, oh, they admitted that accountable needs consequences.
Well, that, I mean, you have to look at exactly what these people said, and it's really not
the way the district court portrayed it.
The second thing is, you know, they say the press secretary threatened them with legal
liability.
As we pointed out in our brief, the district court put in quotation marks words that the
press secretary did not say at that press briefing.
You have to look at the actual press briefing.
You can't just say, oh, they're doing all of these threats.
You know, they're threatening people with legal liability.
Look at what she said.
And what she said is just, you know, there was a mention, a litany of policy proposals,
you know, more privacy protections, robust antitrust.
You know, they talk about reforms to Section 230.
These are the sorts of things a press secretary has to be talking about.
The other mention of antitrust, as we discussed in our reply brief, was in response to a question
about oligarchies.
And she said, you know, we support reforms in antitrust law.
These are not threats.
The idea that you would say those statements by the press secretary meant that if you don't
follow specific directions from the White House about taking down particular posts,
we are going to change the antitrust laws and change Section 230.
If the district court made a factual finding like that, it's clearly erroneous.
I'm not sure the court actually did.
But if it did, that's clearly erroneous.
That is not support.
What about the president's own comments that social media platforms are quote, killing
people unquote.
No threat in that statement, but powerful nonetheless.
Correct.
It may be a powerful statement.
And so the legal question then would be, is it proper for a district court to say the
president can't make powerful statements trying to persuade the public about what people should
or should not do?
The president isn't subject to this injunction.
I thought he was specifically...
That's correct.
But so, you know, if the press secretary had said that about the president's views, you
know, that would be subject to it.
And it's extraordinary to say if the president's view is that certain conduct of disseminating
information is harming the public safety of the United States of America, that the press
secretary cannot express that view.
If it's backed by a threat, if it says, and if you don't do what we want, then this will
happen to you, that's different.
That's what the cases are about.
But that's not what happened in this case.
For any of this.
It's not just that one.
They haven't named one.
You know, they flag things.
They flag...
You know, they say the FBI got a 50% rate of having the posts that it identified taken
down.
I'm surprised it's that low.
Usually the FBI is probably right about whether it's foreign influence or not.
The social media companies...
The idea that the social media companies felt like they had to bend to the FBI's will when
half the time they didn't.
I mean, this is just...
This doesn't support any of these theories.
I'd like to just point out the chronological point we made in our brief.
Twitter and the other social media companies adopted policies in 2020 about COVID misinformation.
They say this is attributable either to a White House pressure campaign that began in
2021, which is obviously not true.
We didn't go in a time machine.
Or they say it's attributable to congressional pressure from before then, which is not part
of this case.
You can't sue the executive branch and say members of Congress put too much pressure
on social media companies.
That's their whole theory of coercion.
The whole thing falls apart on the facts.
Now, just a couple points about what happened in the district court, and I see my time is
running out.
They say you don't have to get into social significant encouragement.
I think I heard him say that.
For some agencies, all the district cap found was significant encouragement, not coercion.
So if...
He may think that it satisfies the...
Does coercion necessarily entail a threat, either overt or covert?
Isn't a directive itself enough to constitute unconstitutional coercion absent and or else
consequence?
I guess I'm not sure what a directive means without a threat.
Do this.
Why haven't you done this?
Get this done.
F-bomb, do this.
I mean, the F-bomb thing, to be clear, is not about content moderation at all.
So I just put that out there.
But I think the reason things...
If you yell and scream at somebody to do something, but there's no consequence if they don't do
it, no, I don't think that's coercion.
Wasn't it about taking something down?
What?
Wasn't it about taking something down?
No, it was about the president's Instagram account and something that had happened to
it.
Okay.
Two last points.
One about what happened in the district court.
The question about whether you can take judicial notice is only part of the question.
I mean, the other thing is these materials were not...
Maybe the district court could have taken judicial notice.
We would probably dispute that.
But these materials were not before the district court.
They're not a basis for upholding the district court's conclusion.
If the plaintiffs had come in with a new declaration on appeal, that might be admissible evidence,
but that doesn't mean this court could consider it in this appeal.
So that should just be out.
And on a related topic in terms of what was in the district court, on listener standing,
the district court didn't adopt listener standing.
I see my time is up.
If I could wrap up very quickly.
And all the district court said on the subject in the context of class certification was
it didn't think the plaintiffs had established, that they were harmed by things that happened
to other people.
And that just ties into the point that standing is not dispensed in gross.
You have to find for each claim as to each defendant, each thing you're trying to enjoin,
that it's gonna harm these individual plaintiffs.
Thank you, Your Honor.
We request that the preliminary injunction be reversed.
I just wanted to close by reminding the court, if the court is disinclined to do that, I
would just remind the court that we have asked that the court extend the stay for at least
10 days in case the Solicitor General wishes to pursue Supreme Court review.
Thank you.
We have your argument.
We appreciate all the arguments here today.
The court will stand adjourned pursuant to the usual order.