The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
STATE OF MISSOURI ET AL CIVIL ACTION NO. 3:22-cv-1213
VERSUS JUDGE TERRY A. DOUGHTY
JOSEPH R BIDEN JR ET AL MAG. JUDGE KAYLA D. MCCLUSKY
MEMORANDUM RULING ON MOTION TO STAY
Before the Court is a Motion to Stay Preliminary Injunction Pending Appeal and
Alternatively, for Administrate Stay [Doc. No. 297] (“Motion to Stay”) filed by Defendants.1 An
Opposition [Doc. No. 299] was filed by Plaintiffs.2
For the reasons set forth herein, Defendants’ Motion to Stay is DENIED.
I. BACKGROUND
On July 4, 2023, this Court issued a Preliminary Injunction against the Defendants,3 which
prohibited the Defendants from contacting social-media companies and taking specific actions for
the purpose of urging, encouraging, pressuring, or inducing in any manner, the removal, deletion,
1 Defendants consist of President Joseph R Biden (“President Biden”), Jr, Karine Jean-Pierre (“Jean-Pierre”), Vivek
H Murthy (“Murthy”), Xavier Becerra (“Becerra”), Dept of Health & Human Services (“HHS”), Dr. Hugh
Auchincloss (“Auchincloss”), National Institute of Allergy & Infectious Diseases (“NIAID”), Centers for Disease
Control & Prevention (“CDC”), Alejandro Mayorkas (“Mayorkas”), Dept of Homeland Security (“DHS”), Jen
Easterly (“Easterly”), Cybersecurity & Infrastructure Security Agency (“CISA”), Carol Crawford (“Crawford”),
United States Census Bureau (“Census Bureau”), U. S. Dept of Commerce (“Commerce”), Robert Silvers (“Silvers”),
Samantha Vinograd (“Vinograd”), Ali Zaidi (“Zaidi”), Rob Flaherty (“Flaherty”), Dori Salcido (“Salcido”), Stuart F.
Delery (“Delery”), Aisha Shah (“Shah”), Sarah Beran (“Beran”), Mina Hsiang (“Hsiang”), U. S. Dept of Justice
(“DOJ”), Federal Bureau of Investigation (“FBI”), Laura Dehmlow (“Dehmlow”), Elvis M. Chan (“Chan”), Jay
Dempsey (“Dempsey”), Kate Galatas (“Galatas”), Katharine Dealy (“Dealy”), Yolanda Byrd (“Byrd”), Christy Choi
(“Choi”), Ashley Morse (“Morse”), Joshua Peck (“Peck”), Kym Wyman (“Wyman”), Lauren Protentis (“Protentis”),
Geoffrey Hale (“Hale”), Allison Snell (“Snell”), Brian Scully (“Scully”), Jennifer Shopkorn (“Shopkorn”), U. S. Food
& Drug Administration (“FDA”), Erica Jefferson (“Jefferson”), Michael Murray (“Murray”), Brad Kimberly
(“Kimberly”), U. S. Dept of State (“State”), Leah Bray (“Bray”), Alexis Frisbie (“Frisbie”), Daniel Kimmage
(“Kimmage”), U. S. Dept of Treasury (“Treasury”), Wally Adeyemo (“Adeyemo”), U. S. Election Assistance
Commission (“EAC”), Steven Frid (“Frid”), and Kristen Muthig (“Muthig”).
2 Plaintiffs consist of the State of Missouri, the State of Louisiana, Dr. Aaron Kheriaty (“Kheriaty”), Dr. Martin
Kulldorff (“Kulldorff”), Jim Hoft (“Hoft”), Dr. Jayanta Bhattacharya (“Bhattacharya”), and Jill Hines (“Hines”).
3 [Doc. No. 294]
suppression, or reduction of content containing protected free speech posted on social-media
platforms.4 The Judgment defined “protected free speech” as “speech that is protected by the Free
Speech Clause of the First Amendment to the United States Constitution in accordance with the
jurisprudence of the United States Supreme Court, Courts of Appeal and District Courts.”5
Defendants filed a Notice of Appeal6 on July 5, 2023. On July 6, 2023, Defendants filed
the instant Motion to Stay.7 In the Motion to Stay, Defendants seek to have the Court Stay the
Preliminary Injunction pending appeal, or alternatively to administratively stay the preliminary
injunction for seven days.
The Defendants allege that they face irreparable harm with each day the injunction remains
in effect, because the injunction’s broad scope and ambiguous terms may be read to prevent the
Defendants from engaging in a vast range of lawful and responsible conduct, including speaking
on matters of public concern, and working with social-media companies on initiatives to prevent
grave harm to the American people and the Country’s various democratic processes.
II. LAW AND ANALYSIS
In determining whether to grant a stay pending appeal, a court is to consider: (1) whether
the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether
the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in the proceeding; and (4) where the public interest
lies. Nken v. Holder, 556 U.S. 418, 426 (2009). In evaluating these factors, courts have refused to
apply them in a rigid or mechanical fashion. United States v. Baylor Univ. Med. Ctr., 711 F.2d 38,
39 (5th Cir. 1983).
4 [Id.]
5 [Id. at 4, n. 3]
6 [Doc. No. 296]
7 [Doc. No. 297]
A. Success on the Merits
For all the reasons set forth in the Memorandum Ruling,8 this Court finds the Plaintiffs
have shown a likelihood of success on the merits and, therefore, that Defendants have failed to
show a likelihood of success on the merits. As discussed in detail in the Memorandum Ruling, all
of the Defendants likely “significantly encouraged” and/or “jointly participated” with the social-
media companies to engage in viewpoint-based suppression of protected free speech. Additionally,
the White House Defendants9 and the Surgeon General Defendants10 were found to have likely
engaged in coercion of social-media companies.
The following are a few examples of actions taken by Defendants that demonstrate they
are unlikely to succeed on the merits.
1. White House Defendants
(a) On January 23, 2021, White House Digital Director for COVID-19 Response Team
Clarke Humphrey emailed Twitter and requested the removal of an anti-COVID-19 vaccine tweet
by Robert F. Kennedy, Jr.11
(b) On April 14, 2021, White House Deputy Assistant to the President and Director of
Digital Strategy Rob Flaherty (“Flaherty”) demanded censorship by Facebook of a video of Fox
News hosts Tucker Carlson and Tomi Lahren where Tucker Carlson was saying COVID-19
vaccines don’t work and Tomi Lahren was saying she won’t take a COVID-19 vaccine.12 Flaherty
demanded immediate answers from Facebook on April 16, 2021, in relation to the video, and on
8 [Doc. No. 294]
9 White House Defendants consist of President Joseph R. Biden (“President Biden”), White House Press Secretary
Karine Jean-Pierre (“Jean-Pierre”), Ashley Morse (“Morse”), Deputy Assistant to the President and Director of Digital
Strategy Rob Flaherty (“Flaherty”), Dori Salcido (“Salcido”), Aisha Shah (“Shah”), Sarah Beran (“Beran”), Stuart F.
Delery (“Delery”), Mina Hsiang (“Hsiang”), and Dr. Hugh Auchincloss (Dr. Auchincloss”)
10 Surgeon General Defendants consists of Dr. Vivek H. Murthy (“Murthy”) and Katharine Dealy (“Dealy”).
11 [Doc. No. 293 at 9]
12 [Doc. No. 293 at 16]
April 21, 2021, despite not violating Facebook’s policies, Facebook gave the video a 50%
reduction for seven days and stated it would continue to demote the video.13
2. Surgeon General Defendants
(a) Senior Advisor to the Surgeon General Eric Waldo (“Waldo”) testified that Surgeon
General Dr. Vivek H. Murthy (“Murthy”) used his office to advocate for social-media platforms
to take stronger actions against “health misinformation,” which involved putting pressure on
social-media platforms to reduce the dissemination of health misinformation. That message was
given to social-media platforms both publicly and privately.14
(b) In addition to public statements, Murthy had meetings with social-media
companies, called health misinformation “poison,” and called for social-media companies to do
more to control the reach of health disinformation. When Murthy was calling posts “health
disinformation,” he was referring to anti-vaccine posts.15
3. CDC Defendants16
(a) The CDC Defendants consistently had regular contact with social-media platforms
via email, phone, and in-person meetings. The CDC Defendants received CrowdTangle reports
from Facebook as to the “top engaged COVID and vaccine related content.17
(b) The CDC Defendants provided PowerPoint slide decks to Facebook, which
provided examples of misinformation topics and made recommendations to Facebook as to
whether claims were true or false. Some of the items designated as false by the CDC Defendants
13 [Doc. No. 297 at 17-18]
14 [Doc. No. 293 at 28]
15 [Doc. No. 293 at 31-33]
16 The CDC Defendants consist of the Centers for Disease Control & Prevention, Carol Crawford (“Crawford”), Jay
Dempsey (“Dempsey”), Kate Galatas (“Galatas”), United States Census Bureau (“Census Bureau”), Jennifer
Shopkorn (“Shopkorn”), the Department of Health and Human Services (“HHS”), Xavier Becerra (“Becerra”),
Yolanda Byrd (“Byrd”), Christy Choi (“Choi”), Ashley Morse (“Morse”), and Joshua Peck (“Peck”).
17 [Doc. No. 293 at 39]
included medically debatable topics such as whether COVID-19 had a 99.96% survival rate,
whether COVID-19 vaccines weaken the immune system, and the safety of COVID-19 vaccines.18
4. NIAID Defendants19
(a) Dr. Francis Collins sent an email to Dr. Anthony Fauci on October 8, 2020, which
stated that the Great Barrington Declaration20 needed to have a “quick and devastating take-
down.”21
(b) Dr. Fauci sent back information to “debunk” The Great Barrington Declaration and
both Dr. Collins and Dr. Fauci followed up with a series of public media statements attacking the
Great Barrington Declaration. Thereafter the Great Barrington Declaration was censored by social-
media platforms.22
5. FBI Defendants23
(a) The FBI Defendants, along with numerous social-media platforms, CISA, and the
Department of Homeland Security, met consistently at Industry Meetings. The Industry Meetings
were used by the FBI Defendants and others to discuss election disinformation.24
(b) Prior to the 2020 Presidential election, the FBI repeatedly warned social-media
companies to be alert for “hack and dump” or “hack and leak” operations. The Hunter Biden laptop
story was published by the Washington Post on October 14, 2020. After being asked by Facebook
whether the Hunter Biden laptop story was Russian disinformation, the FBI’s Laura Dehmlow
18 [Doc. No. 293 at 41-44]
19 The NIAD Defendants consist of the National Institute of Allergy and Infectious Disease and Dr. Hugh
Auchincloss (“Dr. Auchincloss”).
20 [Doc. No. 293 at 55]
21 The Great Barrington Declaration is a one-page treatise opposing the reliance of lockdowns, criticized social
distancing, and expressed concerns about physical and mental health impacts of lockdowns.
22 [Doc. No. 293 at 54]
23 FBI Defendants include Elvis Chan (“Chan”), the Federal Bureau of Investigation (“FBI”), Lauren Dehmlow
(“Dehmlow”), and the U.S. Department of Justice (“DOJ”).
24 [Doc. No. 293 at 54]
refused to comment, leading Facebook to suppress the story. The FBI had had the laptop since
December of 2019, and knew that the story was not Russian disinformation.25
6. CISA Defendants26
(a) The CISA Defendants regularly met with social-media platforms at several types
of meetings. At those meetings, disinformation was discussed as well as reports about social-media
companies’ changes to censorship policies.27 CISA had five sets of recurring meetings with social-
media platforms that involved discussions of misinformation, disinformation, and/or censorship of
protected free speech on social media.28
(b) The CISA Defendants collaborated with the Election Integrity Partnership, working
with them in a “switchboarding” operation which reported alleged election misinformation to
social-media companies. The alleged election misinformation included claims that “mail-in voting
is insecure” and “theories about election fraud are hard to discount.”29
(c) CISA Director Jen Easterly views the word “infrastructure” expressively to include
our “cognitive infrastructure,” which deals with the way people acquire knowledge and
understanding.30
7. State Department Defendants31
(a) The State Department Defendants worked closely and collaborated with the
Election Integrity Partnership and the Virality Project, who forwarded alleged election
25 [Doc. No. 293 at 61-63]
26 CISA Defendants consist of the Cybersecurity and Infrastructure Security Agency (“CISA”), Jen Easterly
(“Easterly”), Kim Wyman (“Wyman”), Lauren Protentis (“Protentis”), Geoffrey Hale (“Hale”), Allison Snell
(“Snell”), Brian Scully (“Scully”), the Department of Homeland Security (“DHS”), Alejandro Mayorkas
(“Mayorkas”), Robert Silvers (“Silvers”), and Samantha Vinograd (“Vinograd”).
27 [Doc. No. 293 at 68-69]
28 [Doc. No. 293 at 75]
29 [Doc. No. 293 at 70-74]
30 [Doc. No. 293 at 77]
31 The State Department Defendants consist of the United States Department of State, Leah Bray (“Bray”), Daniel
Kimmage (“Kimmage’), and Alex Frisbie (“Frisbie”).
misinformation and COVID-19 misinformation to social-media companies.32 The alleged
misinformation related to content by American citizens. The alleged disinformation primarily
involved social media posts which delegitimized election results,33 and posts which involved anti-
vaccine content by such personalities as Alex Berenson, Candace Owens, Tucker Carlson, and
John F. Kennedy, Jr.34
(b) The Election Integrity Partnership was designed “to get around unclear legal
authorities, including very real First Amendment questions” that would arise if government
agencies were to monitor and flag information for censorship on social media.35
B. Standing
Defendants further argue that they will prevail as to establishing that Plaintiffs lack Article
III standing. For the reasons set forth previously in the Memorandum Ruling36 this Court found all
of the Plaintiffs are likely to establish all elements of Article III standing. Defendants argue the
States of Missouri and Louisiana do not have parens patriae standing to bring a claim against the
Federal Government. This Court disagrees. In Massachusetts v. E.P.A., 549 U.S. 497 (2007), the
United States Supreme Court concluded that Massachusetts had standing to sue the E.P.A. to
protect its quasi-sovereign interests. The court clarified that because Massachusetts sought to
assert its rights under federal law, rather than challenge the federal law’s application for its citizens,
the State of Massachusetts had standing. Like Massachusetts, the States of Missouri and Louisiana
are asserting their rights under the First Amendment to the United States Constitution, and also
asserting rights under each Plaintiff States’ own constitution. The Plaintiff States are likely to
32 [Doc. No. 293 at 79-81]
33 [Doc. No. 293 at 81]
34 [Doc. No. 293 at 86]
35 [Doc. No. 293 at 73].
36 [Doc. No. 293 at 119-139] (see also [Doc. No. 214] (Memorandum Ruling Denying Defendants’ Motion to
Dismiss))
prevail on their standing argument because they have adequately alleged (and provided evidence
supporting) injuries to their quasi-sovereign interest as well as direct censorship injuries on social-
media.
There are also individual Plaintiffs in this case. Only one Plaintiff with standing is required
to be able to maintain this suit. Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1651
(2017). Defendants argue that the individual Plaintiffs’ standing have not shown “irreparable
harm.” The individual Plaintiffs’ standing analysis is set forth in the Memorandum Ruling.37 The
“irreparable harm” element was also specifically discussed in the Memorandum Ruling.38
Violation of a First Amendment Constitutional right, even for a short period of time, is always
irreparable injury. Elrod v. Burns., 427 U.S. 347 (1976). Accordingly, for the reasons set forth
previously, the Plaintiffs have shown there is a substantial risk that future harm is likely to occur
and that they are likely to satisfy the requirements of Article III standing.
C. Public Interest and Harm
Defendants further maintain they will be irreparably injured absent a stay, and that the
balance of the equities weighs heavily in the Defendants’ favor of granting a stay. Again, this Court
disagrees. As discussed in the Memorandum Ruling,39 the First Amendment free speech rights of
Plaintiffs by far outweighs the Defendants’ interests.
Defendants argue that the injunction may be read to prevent the Defendants from engaging
in a vast range of lawful conduct—including speaking on matters of public concern and working
with social-media companies on initiatives to prevent grave harm to the American people and our
democratic processes. However, the Preliminary Injunction only prohibits what the Defendants
37 [Id. at 126-135]
38 [Id. at 139-140]
39 [Id. at 144-45]
have no right to do—urging, encouraging, pressuring, or inducing in any manner the removal,
deletion, suppression, or reduction of content containing protected free speech on social-media
platforms. The Defendants provide no argument that they are legally allowed to take such action.
The Defendants are asking the Court to grant them relief to a Preliminary Injunction that only bars
illegal conduct. In other words, the only effect of staying the Preliminary Injunction would be to
free Defendants to urge, encourage, pressure, or induce the removal, deletion, suppression, or
reduction of content containing protected free speech on social-media platforms.
The Preliminary Injunction also has several exceptions which list things that are NOT
prohibited. The Preliminary Injunction allows Defendants to exercise permissible public
government speech promoting government policies or views on matters of public concern, to
inform social-media companies of postings involving criminal activity, criminal conspiracies,
national security threats, extortion, other threats, criminal efforts to suppress voting, providing
illegal campaign contributions, cyber-attacks against election infrastructure, foreign attempts to
influence elections, threats against the public safety or security of the United States, postings
intending to mislead voters about voting requirements, procedures, preventing or mitigating
malicious cyber activity, and to inform social-media companies about speech not protected by the
First Amendment.
Defendants cite no specific action that would be prohibited by this Preliminary Injunction
that would provide grave harm to the American people or over democratic processes. In fact, in
opposition to the Motion for Preliminary Injunction, Defendants submitted five Declarations40 that
addressed Defendants’ concerns. Every one of these concerns was addressed in the Preliminary
40 Leah Bray [Doc. No. 226-6 at 198-296] (foreign propaganda); Larissa Knapp [Doc. No. 266-6 at 448-47] (crimes,
threats, national security threats); Brandon Wales [Doc. No. 266-6 at 553-572] (malicious cyber activity); Max
Lesko [Doc. No. 266-4 at 130-178] (commission of public health issues); and Carol Crawford [Doc. No. 266-5 at
67-77] (public health information)
Injunction exceptions. An enjoined party must identify a specific concern that the injunction will
prohibit. Regal Knitwear Co. v. N.L.R.B., 65 S. Ct. 478, 482 (1945). Defendants have failed to do
so. Therefore, the Defendants would not be irreparably harmed, and the balance of equities and
harm weighs in favor of Plaintiffs, not Defendants.
D. Specificity of Preliminary Injunction
Additionally, Defendants argue that the Preliminary Injunction is sweeping in scope and
vague in its terms.41 A Preliminary Injunction must describe in reasonable detail the act or acts
restrained or required. FED. R. CIV. P. 65. An ordinary person reading the Court’s order must be
able to ascertain from the document itself exactly what conduct is proscribed or prohibited.
Louisiana v. Biden, 45 F.4th 841, 846 (5th Cir. 2022). Defendants argue that both the prohibited
conduct and the conduct that is not prohibited is vague.
Defendants first argue the definition of “protected free speech” is vague because it refers
to jurisprudence of the United States Supreme Court, The United States Courts of Appeal, and
United States District Courts. Defendants question whether an agency official would be required
to research the laws of every federal court to determine what is “protected free speech.”
In order to clarify the definition of “protected free speech” in the Preliminary Injunction,
this Court will modify the definition of “protected free speech” in n. 3 to read as follows:
“Protected free speech” means speech which is protected by the Free
Speech Clause of the First Amendment to the United States
Constitution in accordance with the jurisprudence of the United
States Supreme Court.
Although general “obey the law” injunctions are normally too vague to form the basis of
an injunction, language in an injunction to prohibit future violations of a statute will be upheld
when it relates to the type of acts the Defendants are alleged to have committed. NLRB. V. Express
41 [Doc. No. 297-1 at 3]
Pub. Co., 61 S. Ct. 693, 699 (1941); Interstate Commerce Commission v. Keeshin Motor Exp. Co.,
134 F.2d 228, 231, (7th Cir. 1943) cert. den. 64 S. Ct. 38 ( 1943).
The Preliminary Injunction at issue prohibits the Defendants from taking the described
actions with social-media companies as to “protected free speech,” which is defined by
jurisprudence of the United States Supreme Court. The actions prohibited are the type of actions
the Defendants are alleged to have committed. Therefore, the reference to United States Supreme
Court jurisprudence is not vague. Defendant officials can be and should be trained to recognize
what speech is protected and what speech is not prior to working with social-media companies to
suppress or delete postings. Additionally, the exceptions to the Free Speech Clause of the First
Amendment are “well-defined and narrowly limited classes of speech.” United States v. Stevens,
559 U.S. 460, 468-69 (2010).
Defendants further argue that the exemption in the Preliminary Injunction, which allows
the Government to exercise permissible government speech promoting government policies or
views on matters of public concern, is vague in light of references in the Memorandum Ruling to
government speech by the White House Defendants and the Surgeon General Defendants.42 It is
clear that the Preliminary Injunction does not prohibit government speech. The portion of the
Memorandum Ruling addressing Defendants’ government speech argument43 clearly notes that
the government speech was not a First Amendment violation. Rather, it was the use of government
agencies and employees to coerce and/or significantly encourage social-media platforms to
suppress free speech on their platforms. Therefore, the government speech exception in the
Preliminary Injunction is not ambiguous or vague.
42 [Doc. No. 294 at 6]
43 [Doc. No. 293 at 118-119].
Defendants further allege that the injunction is not clear what entities or individuals are
covered because the Preliminary Injunction names entire agencies which are composed of many
sub-components. Defendants noted that the Preliminary Injunction did not enjoin the Food and
Drug Administration (“FDA”) but enjoined the Department of Health and Human Services, of
whom the FDA is a part.
The Motion for Preliminary Injunction is clearly denied as to the FDA, along with the other
entities specifically noted. FED. R. CIV. P. Rule 65 not only prohibits the party Defendants, but
also those identified with them in interest, in priority with them, represented by them, or subject
to their control. Regal Knitwear Co. v. N.L.R.B., 65 S. Ct. 478, 481 (1945). An injunctive order
also binds the party’s officers, agents, servants, employees, attorneys, and those persons in active
concert with them who receive actual notice of the order. U.S. v. Hall, 472 F.2d 261, 267, (5th Cir.
1972). FED R. CIV. P. Rule 65(d) specifically allows an agency’s officers, agents, servants,
employees, and attorneys to be bound. Therefore, the Preliminary Injunction is not vague or
ambiguous as to the entities or individuals who are covered. If Defendants’ interpretation was
accepted, an agency could simply instruct a sub-agency to perform the prohibited acts and avoid
the consequences of an injunction.
III. CONCLUSION
Plaintiffs are likely to prove that all of the enjoined Defendants coerced, significantly
encouraged, and/or jointly participated social-media companies to suppress social-media posts by
American citizens that expressed opinions that were anti-COVID-19 vaccines, anti-COVID-19
lockdowns, posts that delegitimized or questioned the results of the 2020 election, and other
content not subject to any exception to the First Amendment. These items are protected free speech
and were seemingly censored because of the viewpoints they expressed. Viewpoint discrimination
is subject to strict scrutiny.
Although this Preliminary Injunction involves numerous agencies, it is not as broad as it
appears. It only prohibits something the Defendants have no legal right to do—contacting social-
media companies for the purpose of urging, encouraging, pressuring, or inducing in any manner,
the removal, deletion, suppression, or reduction of content containing protected free speech posted
on social-media platforms. It also contains numerous exceptions.
Therefore, for the reasons set forth herein,
The Defendants’ Motion to Stay [Doc. No. 297] is DENIED.
MONROE, LOUISIANA, this 10 day of July 2023. %
vm Y a dl. Y yh
UNITED/STATES DISTRICT JUDGE
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