(Left) Conservative commentator Ben Shapiro, co-founder of the Daily Wire, at a speech in Salt Lake City, Utah in 2017.(Leah Hogsten/The Salt Lake Tribune via AP, Pool), (right) Secretary of State Antony Blinken speaks during at a Memorandum of Understanding Signing Ceremony with Spanish Foreign Minister José Manuel Albares on Friday, May 10, 2024, in Washington. (AP Photo/Kevin Wolf)
One day after a federal judge, along with 12 other Donald Trump-appointed jurists, joined a letter endorsing a boycott on hiring Columbia Law students over pro-Palestine campus protests, the jurist ruled in favor of conservative websites the Daily Wire and the Federalist in a “censorship” lawsuit against the Biden administration’s State Department and Secretary of State Antony Blinken.
The lawsuit, filed by lawyers with the New Civil Liberties Alliance and the Office of Texas Attorney General Ken Paxton (R) last December in U.S. District Judge Jeremy Kernodle’s Eastern District of Texas courtroom, alleged that the Daily Wire and the Federalist were “blacklisted” as a result of “one of the most egregious government operations to censor the American press in the history of the nation.” Plaintiffs claimed that the State Department and its Global Engagement Center funded “censorship technology and private censorship enterprises,” namely the Global Disinformation Index and Newsguard, entities that deemed the sites “unreliable” or “risky” sources unfit to reap ad revenue.
The plaintiffs claimed to have established standing by saying accusing those “censorship enterprises” of “injuring” them by “starving them of advertising revenue and reducing the circulation of their reporting and speech[.]” Put simply, they claimed Biden administration-funded entities are trying to put conservative websites out of business by using tools meant to combat foreign propaganda in a domestic setting and to “render disfavored press outlets unprofitable.”
Kernodle, having read the Biden administration’s motion to dismiss, not only decided against moving the case out of Texas, but also ordered up expedited “narrowly targeted” discovery while refusing to toss the case last Tuesday.
Notably, the judge found that AG Paxton and Texas “plausibly allege[d] an injury to its sovereign interest in enforcing” House Bill 20, which states a “social media platform may not censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on: (1) the viewpoint of the user or another person; (2) the viewpoint represented in the user’s expression or another person’s expression[.]”
“Here, Texas alleges that its injury is the predictable result of Defendants’ deliberate efforts to market and promote the censorship tools and technologies to social media platforms. The Court agrees,” the judge wrote. “As highlighted above, the complaint identifies several actions by Defendants, acting through GEC, to encourage and coerce platforms to demote and deplatform certain users. And, the complaint alleges, at least some social media platforms have in fact demoted and deplatformed certain users, thereby injuring Texas’s sovereign interest.”
Calling the Daily Wire suit “replete” with claims of H.B. 20 violations, the judge remarked that the government defendants “underestimate” their own power to “‘significant[ly] encourage[]’ private parties to act—especially during a global pandemic like COVID-19, a subject Defendants sought to control and regulate.”
That emphasis on significant encouragement appears to be a reference to the “censorship” case the U.S. Supreme Court heard in March. The justices have been asked to decide whether the Biden administration’s encouragement of social media companies to remove misinformation during the COVID-19 pandemic was “significant” enough to amount to coercing “censorship” of “disfavored” speech — whether about vaccine mandates and the lab-leak theory, Hunter Biden’s laptop, or the 2020 election — in violation of the First Amendment.
That case was on appeal from the Fifth Circuit, and the court hearing the Daily Wire and Federalist lawsuit falls within that same circuit.
Kernodle explained in a separate order that the discovery he expedited will be “limited.”
“Plaintiffs are essentially requesting staged discovery—an initial period of discovery to support their motion for a preliminary injunction with a tighter-than-normal turnaround,” he said. “Under the circumstances, the Court finds the request reasonable.”
Read the ruling here.
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