# Kennedy v. Biden

> District Court, W.D. Louisiana · February 14, 2024

URL: https://www.frixlaw.com/law-library/cases/10196076

## Case

- **Court:** District Court, W.D. Louisiana
- **Decided:** February 14, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10196076

## How later opinions describe it (automated extraction)

- holding that a “substantial degree of cooperative action” can constitute joint action
- holding that a “substantial degree of cooperative action” can constitute joint action

## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION

ROBERT F KENNEDY JR ET AL CASE NO. 3:23-CV-00381

VERSUS JUDGE TERRY A. DOUGHTY

JOSEPH R BIDEN JR ET AL MAG. JUDGE KAYLA D. MCCLUSKY

MEMORANDUM RULING

Pending before the Court is a Motion for Preliminary Injunction [Doc. No. 6] filed by
Petitioners Robert F. Kennedy, Jr. (“Kennedy”), Children’s Health Defense (“CHD”), and Connie
Sampognaro (“Sampognaro”) (collectively “Kennedy Plaintiffs”). An Opposition [Doc. No. 17]
was filed by Defendants.1 A Reply [Doc. No. 20] was filed by Kennedy Plaintiffs.
I. INTRODUCTION
This proceeding was consolidated2 with the case of Missouri v. Biden3 on July 24, 2023.
The Missouri v. Biden case is now pending before the Supreme Court of the United States with a
petition for writ of certiorari having been granted on October 20, 2023.4
Initially, when granting the Motion to Consolidate this case with Missouri v. Biden, this
Court stated:

1 Defendants consist of Joseph R. Biden, Jr., Karine Jean-Pierre, Vivek H. Murthy, Xavier Becerra, Dept. of Health
& Human Services, Anthony Fauci, National Institute of Allergy & Infectious Diseases, Centers for Disease Control
& Prevention, Carol Y. Crawford, Untied States Census Bureau, Jennifer Shopkorn, U.S. Department of Commerce,
Alejandro Mayorkas, Robert Silvers, Samantha Vinograd, Department of Homeland Security, Jen Easterly,
Cybersecurity & Infrastructure Security Agency, Gina McCarthy, Nina Jankowicz, Andrew Slavitt, Rob Flaherty,
Courtney Rowe, Clarke Humphrey, Benjamin Wakana, Dana Remus, Aisha Shah, Laura Rosenberger, Mina Hsiang,
U.S. Department of Justice, Federal Bureau of Investigation, Laura Dehmlow, Elvis M.. Chan, Jay Dempsey, Eric
Waldo, Yolanda Byrd, Christy Choi. Tericka Lambert, Joshua Peck, Janell Muhammad, Matthew Masterson, Lauren
Protentis, Geoffery Hale, Allison Snell, Brian Scully, Zachary Henry Schwartz, Lorena Molina-Irizarry, Kristin
Galemore, U.S. Food and Drug Administration, Erica Jefferson, Michael Murray, Brad Kimberly, U.S. Department
of State, Samaruddin K. Stewart, Daniel Kimmage, Alexis Frisbie, U.S. Department of Treasury, Mark A. Robbins,
Kristen Muthig, Global Engagement Center, and the U.S. Election Assistance Commission.
2 [Doc. No. 27], 2023 WL 4721172 (W.D. La., July 24, 2023)
3 3:22-cv-1213
4 144 S.Ct. 7 (2023)
This Court will not rule on the preliminary injunction in Kennedy v.
Biden until a ruling by the Fifth Circuit and/or the Supreme Court
of the United States on the preliminary injunction in Missouri v.
Biden; that will keep the consolidation from complicating the matter
on appeal and will likely result in a more streamlined resolution of
the preliminary injunction in Kennedy v. Biden.5

After the Supreme Court of the United States granted a writ of certiorari on October 20,
2023, Kennedy Plaintiffs filed a Motion to Intervene6 in the Missouri v. Biden7 case pending before
the Supreme Court. The Supreme Court denied the Kennedy Plaintiffs’ Motion to Intervene on
December 11, 2023.8 A dissenting opinion by Justice Alito9 pointed out that, due to the Kennedy
Plaintiffs’ Motion for Preliminary Injunction being “stuck” in the District Court, denying the
intervention would likely prevent Kennedy from vindicating his claims until June 2024 or later.10
After the denial of the Kennedy Plaintiffs’ Motion for Intervention, this Court entered a
Minute Entry ordering that the parties brief whether consolidation of this case with a case pending
at the Supreme Court of the United States interfered with this Court’s ability to rule on the pending
Motion for Preliminary Injunction. Both Defendants11 and the Kennedy Plaintiffs12 responded.
Accordingly, the Court will first determine whether it can rule on the Kennedy Plaintiffs'
Motion for Preliminary Injunction and will then consider whether the Motion should be granted.
II. FACTUAL BACKGROUND
The Kennedy Plaintiffs’ Motion for Preliminary Injunction submits the same evidence
previously introduced in Missouri v. Biden. 13 The evidence in the Missouri v. Biden case has been

5 2023 WL 4721172 (W.D. La., July 24, 2023)
6 [Need Doc. No. ]
7 Entitled Murthy v. Missouri
8 144 U.S. 32
9 Id.
10 Kennedy is a candidate for President of the United States.
11 [Doc. No. 29]
12 [Doc. No. 30]
13 [Doc. No. 6, p. 1]
extensively addressed and discussed in this Court’s prior ruling.14 Therefore, because the Kennedy
Plaintiffs rely on the same evidence, the Court will reference its previous ruling in this section and
anywhere else deemed appropriate.
The same individuals and agencies were named as Defendants in both Kennedy v. Biden
and Missouri v. Biden. The Preliminary Injunction in Missouri v. Biden only referenced some

groups of those Defendants: the White House Defendants,15 the Surgeon General Defendants,16
the CDC Defendants,17 the NIAID Defendants,18 the FBI Defendants,19 the CISA Defendants,20
and the State Department Defendants.21 There were other Defendants against which a Preliminary
Injunction was not sought.
The Kennedy Plaintiffs likewise seek a Preliminary Injunction against the White House
Defendants, the Surgeon General Defendants, the CDC Defendants, the NIAID Defendants, the
FBI Defendants, the CISA Defendants, and the State Department Defendants. In their Complaint,22
the Kennedy Plaintiffs allege the Defendants violated the Free Speech Clause of the First
Amendment to the United States Constitution by (1) systematically and repeatedly using

14 2023 WL 4335270 at 4-40 (W.D. La, July 4, 2023).
15 White House Defendants consists 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”).
16 Surgeon General Defendants consists of Dr. Vivek H. Murthy (“Murthy”) and Katharine Dealy (“Dealy”).
17 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”).
18 The NIAD Defendants consist of the National Institute of Allergy and Infectious Disease and Dr. Hugh Auchincloss
(“Dr. Auchincloss”).
19 The FBI Defendants include Elvis Chan (“Chan”), the Federal Bureau of Investigation (“FBI”), Lauren Dehmlow
(“Dehmlow”), and the U.S. Department of Justice (“DOJ”).
20 The 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”).
21 The State Department Defendants consist of the United States Department of State, Leah Bray (“Bray”), Daniel
Kimmage (“Kimmage’), and Alex Frisbie (“Frisbie”).
22 [Doc. No. 1, ¶ 450-51]
destructive, coercive threats to force social-media companies to censor protected speech and/or (2)
entering into collusive partnerships with social-media companies and working jointly with those
companies to censor protected speech.
The Complaint alleges this conduct harmed Kennedy by directly censoring him on social
media, deplatforming him entirely from major social-media platforms, and preventing him from

gathering news to pass on to his hundreds of thousands of social-media followers.23 The CHD
alleges it was directly censored and likewise suffered from the inability to gather news to pass on
to its members. The CHD further claims its many members were deprived of information and ideas
regarding the safety and efficacy of alternative COVID-19 treatments, among other things.24
Sampognaro alleges the Government’s censorship campaign harmed her as a citizen and health
care policy advocate by depriving her of COVID-19-related and other information. Sampognaro
further alleges she needs complete, accurate information about COVID-19 and possible treatments
and has been unable to obtain this information due to the Defendants’ actions.25
The Kennedy Plaintiffs’ Complaint further moves the Court to certify this case as a class

action pursuant to FED. R. CIV P. 23(b)(2) for “all persons in the United States who have consumed
news related to COVID-19 or U.S. Elections on Facebook, Twitter, or YouTube at any time from
January 2020 to the present.”26
This Court previously granted the Petition for Preliminary Injunction in Missouri v. Biden
on July 4, 2023,27 as to the White House Defendants, the Surgeon General Defendants, the CDC
Defendants, the NIAID Defendants, the FBI Defendants, the CISA Defendants, and the State

23 [Doc. No. 1, ¶ 434]
24 [Doc. No. 1, ¶¶ 436-37]
25 [Doc. No. 1, ¶¶ 438-39]
26 [Doc. No. 1, ¶¶ 400-409]
27 2023 WL 4335270 (W.D. La., July 4, 2023)
Department Defendants. On October 3, 2023, 28 the United States Court of Appeals for the Fifth
Circuit affirmed the District Court Ruling with respect to the White House Defendants, the
Surgeon General Defendants, the CDC Defendants, the FBI Defendants, and the CISA Defendants.
The Fifth Circuit reversed the District Court Ruling with respect to the NIAID Defendants and the
State Department Defendants. The Preliminary Injunction was modified with respect to the White

House Defendants, Surgeon General Defendants, the CDC Defendants, the FBI Defendants, and
the CISA Defendants as follows:
Defendants, and their employees and agents, shall take no actions,
formal or informal, directly or indirectly, to coerce or significantly
encourage social-media companies to remove, delete, suppress, or
reduce, including through altering their algorithms, posted social-
media content containing protected free speech. That includes, but
is not limited to, compelling the platforms to act, such as by
intimating that some form of punishment will follow a failure to
comply with any request, or supervising, directing, or otherwise
meaningfully controlling the social-media companies’ decision-
making process.

83 F.4th 350, 397 (5th Cir. 2023). The Fifth Circuit ruling was stayed for ten days.
Thereafter, on October 20, 2023,29 the Supreme Court of the United States, granted a writ
of certiorari and an application for stay, which stayed the preliminary injunction until the Supreme
Court “sends down a judgment.” Therefore, the preliminary injunction in Missouri v. Biden is
presently stayed until the Supreme Court issues its ruling.
Both the Kennedy Plaintiffs and the Defendants filed additional briefing on whether this
Court should issue a ruling on the pending Preliminary Injunction. The Court will first determine
whether it can rule on the Kennedy Plaintiffs' Motion for Preliminary Injunction.

28 83 F.4th 350 (5th Cir. 2023)
29 144 S.Ct. 7 (2023)
III. WHETHER THE COURT CAN ISSUE A RULING ON THE PENDING
MOTION FOR PRELIMINARY INJUNCTION AT THIS TIME
The Defendants concede that the pendency of Missouri v. Biden in the Supreme Court does
not deprive this Court of jurisdiction to rule on the Preliminary Injunction in Kennedy v. Biden.
However, Defendants argue this Court should not decide the preliminary injunction in Kennedy v.
Biden because: (1) a resolution by the Supreme Court in Missouri v. Biden will resolve the issues
in Kennedy v. Biden; (2) the granting of a stay by the Supreme Court means the Defendants have
made a strong showing that Missouri v. Biden is erroneous; and (3) it would be judicially efficient
for this Court to hold the Motion for Preliminary Injunction in abeyance because briefs have
already been filed and oral arguments set in Missouri v. Biden before the Supreme Court, and there
is no practical way Kennedy v. Biden to be taken up in Missouri v. Biden without resulting in

duplicate briefing and judicial determination.
The Kennedy Plaintiffs argue that this Court continues to have jurisdiction over the
Kennedy v. Biden Motion for Preliminary Injunction despite Missouri v. Biden pending before the
Supreme Court.30 The Kennedy Plaintiffs assert that this Court should rule on their Motion for
Preliminary Injunction now because: (1) the Supreme Court’s stay in Missouri v. Biden does not
imply a ruling in Defendants’ favor; (2) the Kennedy v. Biden case is different than Missouri v.
Biden because the Kennedy Plaintiffs have superior standing, asked for a different, more narrowly-
tailored injunction, offered additional First Amendment arguments under which the Defendants’
conduct is alleged to be unconstitutional, and Defendants singled out Kennedy, a candidate for

President of the United States, for censorship; and (3) delaying ruling would delay Kennedy from
vindicating his claims.

30 Hall v. Hall, 138 S.Ct. 1118 (2018)
After reviewing the briefing, this Court finds that it can decide the Kennedy Plaintiffs’
Motion for Preliminary Injunction. The most important consideration is the Kennedy Plaintiffs’
ability to vindicate their rights. In the Missouri v. Biden ruling, this Court found that a violation of
the Plaintiffs’ First Amendment free speech right caused irreparable injury.31 Because the denial
of First Amendment rights is an irreparable injury, a ruling is required now. The Kennedy Plaintiffs

also have different First Amendment arguments than those made in Missouri v. Biden and have a
different standing argument. A ruling on this case now is unlikely to have any effect on the pending
Missouri v. Biden Supreme Court case because that case has already been briefed and scheduled
for oral argument. This Court further finds it unlikely that the stay issued by the Supreme Court in
Missouri v. Biden implies how the Supreme Court will rule.
In accordance with this, the Court will now consider the Kennedy Plaintiffs’ Motion for
Preliminary Injunction.
IV. LAW AND ANALYSIS
Defendants maintain the Kennedy Plaintiffs lack standing and cannot meet the requirements

for a preliminary injunction. The Court shall address each in turn.
A. Standing
Article III of the United States Constitution limits federal courts’ jurisdiction to “cases”
and “controversies.” Sample v. Morrison, 406 F.3d 310, 312 (5th Cir. 2005) (citing U.S. Const.
art. III, § 2). The “law of Article III standing, which is built on separation-of-powers principles,
serves to prevent the judicial process from being used to usurp the powers of the political
branches.” Town of Chester, N.Y. v. Laroe Ests., Inc., 581 U.S. 433, 435 (2017) (citation omitted).
Thus, “the standing question is whether the plaintiff has alleged such a personal stake in the

31 [2023 WL 4335270 at 66-67]
outcome of the controversy as to warrant [its] invocation of federal-court jurisdiction and to justify
exercise of the court’s remedial powers on his behalf.” Warth v. Seldin, 422 U.S. 490, 498-99
(1975) (citation and internal quotation marks omitted). The Article III standing requirements apply
to claims for injunctive and declaratory relief. See Seals v. McBee, 898 F.3d 587, 591 (5th Cir.
2018), as revised (Aug. 9, 2018); Lawson v. Callahan, 111 F.3d 403, 405 (5th Cir. 1997).

Article III standing is comprised of three essential elements. Spokeo, Inc. v. Robins, 578
U.S. 330, 338 (2016), as revised (May 24, 2016) (citation omitted). “The plaintiff must have (1)
suffered an injury-in-fact, (2) that is fairly traceable to the challenged conduct of the defendant,
and (3) that is likely to be redressed by a favorable judicial decision. The plaintiff, as the party
invoking federal jurisdiction, bears the burden of establishing these elements.” Id. (internal
citations omitted). Furthermore, “[a] plaintiff must demonstrate standing for each claim he seeks
to press and for each form of relief that is sought.” Town of Chester, N.Y., 581 U.S. at 439 (citations
omitted). The presence of one party with standing “is sufficient to satisfy Article III’s case-or-
controversy requirement.” Texas, 809 F.3d 134 (citing Rumsfeld v. F. for Acad. & Institutional

Rts., Inc., 547 U.S. 47, 52 n.2 (2006)).
In the context of a preliminary injunction, it has been established that “the ‘merits’ required
for the plaintiff to demonstrate a likelihood of success include not only substantive theories but
also the establishment of jurisdiction.” Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913
(D.C. Cir. 2015). To establish standing, the plaintiff must demonstrate that they have encountered
or suffered an injury attributable to the defendant’s challenged conduct and that such injury is
likely to be resolved through a favorable decision. Lujan v. Def. of Wildlife, 504 U.S. 555, 560–61
(1992). Further, during the preliminary injunction stage, the movant is only required to
demonstrate a likelihood of proving standing. Speech First, Inc. v. Fenves, 979 F.3d 319, 330 (5th
Cir. 2020).
Defendants raise challenges to each essential element of standing for Kennedy Plaintiffs.
Each argument will be addressed in turn below. For the reasons stated herein, the Court finds that
the Kennedy Plaintiffs have demonstrated a likelihood of satisfying Article III’s standing

requirements.
i. Injury-in-fact
Plaintiffs seeking to establish injury-in-fact must show they suffered “an invasion of a
legally protected interest” that is “concrete and particularized” and “actual or imminent, not
conjectural or hypothetical.” Spokeo, 578 U.S. at 339 (citations and internal quotation marks
omitted). For an injury to be “particularized,” it must “affect the plaintiff in a personal and
individual way.” Id. (citations and internal quotation marks omitted). The presence of any one
plaintiff with standing to pursue injunctive relief as to the Plaintiff’s First Amendment claim
satisfies Article III’s case-or-controversy requirement. Rumsfeld v. F. for Acad. & Institutional
Rts., Inc., 547 U.S. 47, 52 n.2 (2006).

Kennedy Plaintiffs assert an “injury-in-fact” based on their censorship and/or violations of
their First Amendment right to speak and listen freely without government interference. In
response, Defendants contend that Kennedy Plaintiffs’ allegations rest on long-past conduct,
making Kennedy Plaintiffs’ fears of imminent injury entirely speculative. For the reasons
explained below, the Kennedy Plaintiffs are likely to prove an injury-in-fact.
CHD and Kennedy can demonstrate standing. On January 23, 2021, three days after
President Biden took office, White House Digital Director Clarke Humphrey emailed Twitter to
request the remand of an anti-COVID-19 vaccine tweet by Kennedy.32 Additionally, Defendants
labeled Kennedy as one of the “Disinformation Dozen,” and had Facebook suppress a CHD post,
despite it not violating Facebook policies.33 On May 6, 2021, Rob Flaherty, White House Deputy
Assistant to the President, emailed Facebook and chastised them for failure to censor posts made
by the “Disinformation Dozen.”34 Shortly after June 20, 2021, all twelve members of the

“Disinformation Dozen”, including Kennedy, were censored, and pages, groups and accounts
linked to them were removed.35 Additionally, The Surgeon General’s office received a
presentation from the Center for Countering Digital Hate that the “Disinformation Dozen” were
primarily responsible for a significant amount of online misinformation.36 The Center For
Countering Digital Hate recommended that social-media platforms change algorithms in an effort
to avoid amplifying “misinformation super-spreader” posts.37 The Surgeon General’s office
thereafter ensured Facebook was censoring the “Disinformation Dozen.”38
The CDC worked with The Virality Project to have social-media platforms delete and/or
reduce social-media posts by persons and organizations they believed were spreading

misinformation regarding COVID-19. The Virality Project’s “Memes, Magnets and Microchips”
report39 listed both Kennedy and CHD as spreaders of COVID medical misinformation a total of
sixteen times. The Virality Project further listed Kennedy and the CHD in fifth and second place
as the highest performing weekly social-media engagement incidents.

32 Missouri v. Biden 2023 WL 4335270 at 5 (W.D. La. July 4, 2023).
33 Id. at 9
34 Id. at 11
35 Id. at 12
36 Id. at 14
37 Id. at 16
38 Id. at 17
39 [Doc. No. 209-3, 3:22-cv-01213]
Sampognaro submitted no direct evidence of content suppression. However, she alleges
she is a citizen and health care policy advocate who was deprived of complete, accurate COVID-
19 information. This Court has the benefit of the Fifth Circuit Court of Appeal’s ruling in Missouri
v. Biden,40 which recognized Missouri’s and Louisiana’s standing due to the “right to listen” and
gain information from their citizens on social media. Sampognaro has such standing here.

Both this Court and the United States Court of Appeals for the Fifth Circuit found the
White House Defendants, Surgeon General Defendants, the CDC Defendants, the FBI Defendants
and the CISA Defendants coerced and/or significantly encouraged social-media platforms to
suppress disinformation content. Kennedy, CHD and Sampognaro alleged injuries relating to that
conduct, and those injuries satisfy this requirement of Article III.
ii. Traceability
To establish traceability, or “causation” in this context, a plaintiff must demonstrate a
“direct relation between the injury asserted and the injurious conduct alleged.” Holmes v. Sec. Inv.
Prot. Corp., 503 U.S. 258, 268 (1992). Therefore, courts examining this element of standing must
assess the remoteness, if any, between the plaintiff’s injury and the defendant’s actions. As

explained in Ass'n of Am. Physicians & Surgeons v. Schiff, the plaintiff must establish that it is
“‘substantially probable that the challenged acts of the defendant, not of some absent third party’
caused or will cause the injury alleged.” 518 F. Supp. 3d 505, 513 (D.D.C. 2021), aff'd sub nom.
Ass'n of Am. Physicians & Surgeons, Inc. v. Schiff, 23 F.4th 1028 (D.C. Cir. 2022) ("AAPS II")
(quoting Fla. Audubon Soc. v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996)).
Defendants argue that traceability is lacking because the censorship resulted from the
independent decisions of social-media companies. However, both this Court and the Fifth Circuit

40 83 F.4th 350, 372 (5th Cir. 2023).
found the social-media platforms’ censorship decisions were likely censored, at least in part, due
to the coercion and/or significant encouragement of the White House Defendants, the Surgeon
General Defendants, the CDC Defendants, the FBI Defendants, and the CISA Defendants.
Additionally, social-media postings by both Kennedy and the CHD were directly censored.
Therefore, the Kennedy Plaintiffs have established traceability.

iii. Redressability
The redressability element of the standing analysis requires that the alleged injury is “likely
to be redressed by a favorable decision.” Lujan, 504 U.S. at 560–61. “To determine whether an
injury is redressable, a court will consider the relationship between ‘the judicial relief requested’
and the ‘injury’ suffered.” California v. Texas, 141 S. Ct. 2104, 2115, 210 L. Ed. 2d 230 (2021)
(quoting Allen v. Wright, 468 U.S. 737, 753 n.19 (1984), abrogated by Lexmark Int'l, Inc. v. Static
Control Components, Inc., 572 U.S. 118 (2014)). Additionally, courts typically find that where an
injury is traceable to a defendant’s conduct, it is usually redressable as well. See, e.g., Scenic Am.,
Inc. v. United States Dep't of Transportation, 836 F.3d 42, 54 (D.C. Cir. 2016) (“[C]ausation and
redressability are closely related, and can be viewed as two facets of a single requirement.”); Toll

Bros. v. Twp. of Readington, 555 F.3d 131, 142 (3d Cir. 2009) (“Redressability . . . is closely
related to traceability, and the two prongs often overlap.”); El Paso Cnty. v. Trump, 408 F. Supp.
3d 840, 852 (W.D. Tex. 2019).
All of the Kennedy Plaintiffs claims will likely be redressed by a favorable decision.
Kennedy Plaintiffs argue the Defendants should be restrained from unlawfully interfering with the
social-media companies’ independent application of their content-moderation policies. An
injunction granting this relief will protect the Kennedy Plaintiffs from sustaining further
censorship and violations of their First Amendment rights. Therefore, the Kennedy Plaintiffs have
established redressability.
All the requirements for Article III standing appear to be met. Accordingly, this Court
concludes Kennedy, CHD, and Sampognaro likely have Article III standing.
B. Preliminary Injunction
An injunction is an extraordinary remedy never awarded of right. Benisek v. Lamone, 138
U.S. 1942, 1943 (2018). In each case, the courts must balance the competing claims of injury and

must consider the effect on each party of the granting or withholding of the requested relief. Winter
v. Natural Res. Def. Council, Inc. 555 U.S. 7, 24 (2008).
The standard for an injunction requires a movant to show: (1) the substantial likelihood of
success on the merits; (2) that he is likely to suffer irreparable injury in the absence of an
injunction; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the
public interest. The party seeking relief must satisfy a cumulative burden of proving each of the
four elements enumerated before an injunction can be granted. Clark v. Prichard, 812 F.2d 991,
993 (5th Cir. 1987). None of the four prerequisites has a quantitative value. State of Texas v.
Seatrain Int’l., S.A., 518 F.2d 175, 180 (5th Cir. 1975).

The Kennedy Plaintiffs assert that all the requirements for a preliminary injunction are
satisfied here. Specifically, they argue their free speech claims are likely to succeed on the merits,
even if no coercion, significant encouragement, or joint participation is found. Additionally, the
Kennedy Plaintiffs assert that the remaining requirements are met because the infringement of
their First Amendment freedoms constituted an irreparable injury, the balance of equities tips in
their favor because it will not impinge on legitimate governmental interests, and the protection of
First Amendment freedoms is in the public interest.
The Kennedy Plaintiffs argued additional grounds for a preliminary injunction that were
also argued in Missouri v. Biden. The Kennedy Plaintiffs believe they are entitled to a Preliminary
Injunction against Defendants because of the direct censorship of Kennedy and CHD. Kennedy,
CHD, and Sampognaro further allege they are entitled to a Preliminary Injunction because
Defendants’ censorship campaign deprived them of the ability to gather news to pass on to their
social-media followers. Finally, the Kennedy Plaintiffs assert that the Defendants caused this
suppression through coercion, significant encouragement, and joint participation. Kennedy

Plaintiffs also argue that significant encouragement, coercion and/or joint participation are not
required when the government induces, encourages, or promotes private persons to accomplish
what the government is constitutionally forbidden to accomplish.41 Norwood v. Harrison, 413 U.S.
455, 465 (1973).
Kennedy Plaintiffs also argue that coercion, significant encouragement, and/or joint
participation are also not required when the government’s censorship campaign is “overtly
viewpoint discriminatory”42 Iancu v. Brunetti, 139 U.S. 2294, 2299 (2019). Further, no coercion,
significant encouragement and/or joint participation is necessary when the government has
communicated to social media companies regarding the government’s “strong preference” for
those companies to censor speech disfavored by the government.43 Skinner v. Ry. Lab Executives’

Ass’n., 489 U.S. 602, (1989).
i. Likelihood of Success on the Merits
To determine whether Kennedy Plaintiffs are substantially likely to succeed on the merits
for this preliminary injunction, they must demonstrate that (1) the Defendants exercised coercive
power or such significant encouragement that the private parties’ choice must be deemed the
government’s choice and (2) Defendants jointly participated in the actions of social-media

41 Referred to herein as the “Norwood theory.”
42 Referred to herein as the “viewpoint discrimination theory.”
43 Referred to herein as the “strong preference theory.”
companies so as to blur the line between public and private action. The Court shall address each
in turn.
1. Coercion and/or Significant Encouragement
The Court finds that the Kennedy Plaintiffs are likely to succeed on the merits of their
claim that some of the Defendants exercised coercive power or provided significant

encouragement, which suppressed Plaintiffs’ speech.
The State (i.e., the Government) can be held responsible for a private decision only when
it has exercised coercive power or has provided such “significant encouragement,” either overtly
or covertly, that the choice must be deemed to be that of the State. Mere approval or acquiescence
in the actions of a private party is not sufficient to hold the state responsible for those actions. Blum
v. Yaretsky, 457 U.S. 991, 1004 (1982); Rendell-Baker v. Kohn, 457 U.S. 830, 1004–05 (1982);
National Broadcasting Co. Inc v. Communications Workers of America, Afl-Cio, 860 F.2d 1022
(11th Cir. 1988); Focus on the Family v. Pinellas Suncoast Transit Authority, 344 F.3d 1213 (11th
Cir. 2003); Brown v. Millard County, 47 Fed. Appx. 882 (10th Cir. 2002).

In evaluating “significant encouragement,” a state may not induce, encourage, or promote
private persons to accomplish what it is constitutionally forbidden to accomplish. Norwood v.
Harrison, 413 U.S. at 465. Additionally, when the government has so involved itself in the private
party’s conduct, it cannot claim the conduct occurred as a result of private choice, even if the
private party would have acted independently. Peterson v. City of Greenville, 373 U.S. 244, 247-
48 (1963). Further, oral or written statements made by public officials could give rise to a valid
First Amendment claim where the comments of a governmental official can reasonably be
interpreted as intimating that some form of punishment or adverse regulatory action will follow
the failure to accede to the official’s request. National Rifle Association of America v. Cuomo, 350
F.Supp. 3d 94, 114 (D.C. NY, Nov. 6, 2018). Additionally, a public official’s threat to stifle
protected speech is actionable under the First Amendment and can be enjoined, even if the threat
turns out to be empty. Backpage.com, LLC v. Dart, 807 F. 3d 229, 230-31 (7th Cir. 2015).
To determine whether Kennedy Plaintiffs are substantially likely to succeed on the merits
of their First Amendment free speech claim, Kennedy Plaintiffs must prove that the Defendants

either exercised coercive power or exercised such significant encouragement that the private
parties’ choice must be deemed to be that of the government. Additionally, Kennedy Plaintiffs
must prove the speech suppressed was “protected speech.” The Kennedy Plaintiffs are likely to
succeed on the merits. As exhaustively discussed in this Court’s Missouri v. Biden ruling44 and in
the Fifth Circuit ruling,45 the White House Defendants, the Surgeon General Defendants, the CDC
Defendants, the FBI Defendants, and the CISA Defendants coerced and/or significantly
encouraged social-media platforms to suppress content posted on social-media sites in violation of
the Free Speech Clause of the First Amendment.
Kennedy Plaintiffs rely on the same evidence presented in Missouri v. Biden. This Court

again finds the White House Defendants, the Surgeon General Defendants, the CDC Defendants,
the FBI Defendants and the CISA Defendants likely violated the Free Speech Clause of the First
Amendment. As in Missouri v. Biden, the White House Defendants and the Surgeon General
Defendants both coerced and significantly encouraged social-media platforms to suppress
protected free speech. This Court further finds the CDC Defendants, the CISA Defendants and the
FBI Defendants significantly encouraged social-media platforms to suppress protected free
speech.

44 2023 WL 4335270 (W.D. La., July 4, 2023).
45 83 F.4th 350 (5th Cir. 2023).
This Court does not find the Kennedy Plaintiffs are likely to succeed on the merits of their
claims under the “Norwood theory”, the “viewpoint discrimination theory”, and the “strong
preference” theory. This Court agrees with the Defendants that none of these theories have been
recognized as “stand alone” theories to prove liability of government conduct affecting private
conduct without “coercion,” “significant encouragement,” or “joint participation.”

2. Joint Participation or Activity
This Court further finds that the Kennedy Plaintiffs are likely to succeed on the merits of
their claims that the White House Defendants, the Surgeon General Defendants, the CDC
Defendants, the FBI Defendants, and the CISA Defendants jointly participated with social-media
platforms to suppress protected free speech.
The Kennedy Plaintiffs contend that the Defendants are not only accountable for private
conduct that they coerced or significantly encouraged but also for private conduct in which they
actively participated as “joint participants.” Burton v. Wilmington Parking Authority, 365 U.S.
715, 725 (1961). Most often “joint participation” occurs through a conspiracy or collusive
behavior. Hobbs v. Hawkins, 968 F.2d 471, 480 (5th Cir. 1992). Even without a conspiracy, when

a plaintiff establishes the government is responsible for private action arising out of “pervasive
entwinement of public institutions and public officials in the private entity’s composition and
workings”, joint participation is present. Brentwood Academy. v. Tennessee Secondary Sch.
Athletic Ass’n., 531 U. S. 288, 298 (2001).
Under the “joint action” test, the Government must have played an indispensable role in
the mechanism leading to the disputed action. Frazier v. Bd. Of Trs. Of N.W. Miss. Reg.’l Med.
Ctr., 765 F.2d 1278, 1287-88 (5th Cir. 1985), amended, 777 F.2d 329 (5th Cir. 1985). When a
plaintiff establishes “the existence of a conspiracy involving state action,” the government
becomes responsible for all constitutional violations committed in furtherance of the conspiracy
by a party to the conspiracy. Armstrong v. Ashley, 60 F.4th 262, (5th Cir. 2023). Conspiracy can
be charged as the legal mechanism through which to impose liability on each and all of the
defendants without regard to the person doing the particular act that deprives the plaintiff of federal
rights. Pfannstiel v. City of Marion, 918 F.2d 1178, 1187 (5th Cir. 1990).
Much like conspiracy and collusion, joint activity occurs whenever the government has “so

far insinuated itself” into private affairs as to blur the line between public and private action.
Jackson v. Metro. Edison Co., 419 U.S. 345, 357 (1974). To become “pervasively entwined” in a
private entity’s workings, the government need only “significantly involve itself in the private
entity’s actions and decision-making”; it is not necessary to establish that “state actors … literally
‘overrode’ the private entity’s independent judgment.” Rawson v. Recovery Innovations, Inc., 975
F.3d 742, 751, 753 (9th Cir. 2020). “Pervasive intertwinement” exists even if the private party is
exercising independent judgment. West v. Atkins, 487 U.S. 42, 52, n.10 (1988); Gallagher v. Neil
Young Freedom Concert, 49 F.3d 1442, 1454 (10th Cir. 1995) (holding that a “substantial degree
of cooperative action” can constitute joint action).

Like the ruling in Missouri v. Biden, this Court does not find that the “joint participation”
occurred as a result of a conspiracy with social-media companies. However, Kennedy Plaintiffs
are still likely to succeed on the merits that these Defendants “jointly participated” in the actions
of the private social-media companies by “insinuating” themselves into the social-media
companies’ private affairs and blurring the line between public and private action. For the same
reasons set forth in this Court’s ruling in Missouri v. Biden, the Kennedy Plaintiffs have shown
joint participation or activity here.
ii. Irreparable Harm
The second requirement for a Preliminary Injunction is a showing of irreparable injury.
Thus, plaintiffs must demonstrate “a substantial threat of irreparable injury” if the injunction is not
issued. Texas, 809 F.3d at 150. For injury to be “irreparable,” plaintiffs need only show it cannot
be undone through monetary remedies. Burgess v. Fed. Deposit Inc., Corp., 871 F.3d 297, 304
(5th Cir. 2017). Deprivation of a procedural right to protect a party’s concrete interests is
irreparable injury. Texas, 933 F.3d at 447.
Kennedy Plaintiffs argue in their memorandum that the First Amendment violations are

continuing and/or that future harm is likely to occur. In contrast, Defendants argue that Kennedy
Plaintiffs are unable to show imminent irreparable harm because the alleged conduct occurred in
the past, is not presently occurring, and is unlikely to occur in the future. Defendants argue
Kennedy Plaintiffs rely upon actions that occurred previously and that it cannot be remedied by
any prospective injunctive relief. Further, Defendants argue that there is no “imminent harm”
because both the COVID-19 pandemic and the elections where the alleged conduct occurred are
over.
The Court finds that Kennedy Plaintiffs have demonstrated a likely “injury from the
impending action, that the injury is imminent, and that money damages would not fully repair the

harm.” Humana, Inc., v. Jackson, 804 F.2d 1390, 1394 (5th Cir. 1986). To demonstrate irreparable
harm at the preliminary injunction stage, plaintiffs must adduce evidence showing that the
irreparable injury is likely to occur during the pendency of the litigation. Justin Indus. Inc., v.
Choctaw Secs., L.P., 920 F.2d 262, 268 n. 7 (5th Cir. 1990). This the Kennedy Plaintiffs have
done.
Defendants argue that the alleged suppression of social-media content occurred in response
to the COVID-19 pandemic and attacks on election infrastructure, and, therefore, the alleged
conduct is no longer occurring. Defendants point out that the alleged conduct occurred between
one to three years ago. Defendants further argue the risk that Kennedy Plaintiffs will sustain
injuries in the future is speculative and depends upon the action of the social-media platforms. As
such, the Defendants allege the Kennedy Plaintiffs have not shown imminent harm by any of the
Defendants.
The question is whether Kennedy Plaintiffs have alleged a “substantial risk” that a harm
may occur, which is likely. The alleged past actions of Defendants show a substantial risk of harm

that is likely. Defendants apparently continue to have meetings with social-media companies and
other contacts. Although the COVID-19 pandemic is no longer an emergency, it is likely that in
the event of any other real or perceived emergency event, the Defendants likely would once again
use their power over social-media companies to suppress alternative views. And it is certainly
likely that Defendants could use their power over millions of people to suppress alternative views
or moderate content they do not agree with in the upcoming 2024 national election. Defendants
were not able to state that the “switchboarding” and other election activities of the CISA
Defendants and the State Department Defendants would not resume prior to the upcoming 2024
election; in fact, the FBI’s Elvis Chan testified post 2020, “we’ve never stopped.” Notably, a draft

copy of the DHS’s “Quadrennial Homeland Security Review,” which outlines the department’s
strategy and priorities in upcoming years, states that the department plans to target “inaccurate
information” on a wide range of topics, including the origins of the COVID-19 pandemic, the
efficacy of COVID-19 vaccines, racial justice, the U.S. withdrawal from Afghanistan, and the
return of U.S. Support of Ukraine.46
The Kennedy Plaintiffs have thus shown a substantial risk of harm that is likely. The
Kennedy Plaintiffs demonstrated that not only have the Defendants shown willingness to coerce
and/or to give significant encouragement to social-media platforms to suppress free speech with

46 [Doc. No. 45-4, ¶¶ 14-16] 3:22-1213
regard to the COVID-19 pandemic and national elections, but they have also shown a willingness
to do it with regard to other issues, such as gas prices,47 parody speech,48 calling the President a
liar,49 climate change,50 gender,51 and abortion.52 On June 14, 2022, at an Axios event entitled, “A
Conversation on Battling Disinformation”, White House National Climate Advisor Gina
McCarthy stated, “We have to get together; we have to get better at communicating, and frankly,

the tech companies have to stop allowing specific individuals over and over to spread
disinformation.”53
The Kennedy Plaintiffs are likely to suffer irreparable harm. Deprivation of First
Amendment rights, even for a short period of time, is sufficient to establish irreparable injury.
Elrod v. Burnsi¸427 U.S. 347, 373 (1976). Accordingly, this Court finds that the Kennedy
Plaintiffs have shown irreparable harm.
iii. Equitable Factors and Public Interest
Kennedy Plaintiffs satisfied the first two elements to obtain a preliminary injunction. The
final two elements they must satisfy are that the threatened harm outweighs any harm that may
result to the Federal Defendants and that the injunction will not undermine the public interest.

Valley v. Rapides Par. Sch. Bd., 118 F.3d 1047, 1051 (5th Cir. 1997). These two factors overlap
considerably. Texas, 809 F.3d at 187. In weighing equities, a court must balance the competing
claims of injury and must consider the effect on each party of the granting or withholding of the
requested relief. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). The public interest
factor requires the court to consider what public interests may be served by granting or denying a

47 [Doc. No. 212-3 at 65–66, ¶ 211] 3:22-1213
48 [Id. at 58-60, ¶¶ 180–188] 3:22-1213
49 [Id. at 61, ¶ 190] 3:22-1213
50 [Id. at 63-64, ¶¶ 200–203] 3:22-1213
51 [Id. at 64-64, ¶¶ 204–208] 3:22-1213
52 [Id. at 65, ¶¶ 209–210] 3:22-1213
53 [Doc. No. 214-15] 3:22-1213
preliminary injunction. Sierra Club v. U.S. Army Corps of Engineers, 645 F.3d 978, 997–98 (8th
Cir. 2011).
Defendants maintain that their interest in being able to report misinformation and warn
social-media companies of foreign actors’ misinformation campaigns outweighs the Kennedy
Plaintiffs’ interest in the right of free speech. This Court disagrees and finds the balance of equities

and the public interest strongly favors the issuance of a preliminary injunction. The public interest
is served by maintaining the constitutional structure and the First Amendment free speech rights
of the Kennedy Plaintiffs. The right of free speech is a fundamental constitutional right that is vital
to the freedom of our nation, and the Kennedy Plaintiffs have produced evidence of a massive
effort by Defendants, from the White House to federal agencies, to suppress speech based on its
content.
Defendants’ alleged suppression has likely resulted in millions of free speech violations.
The Kennedy Plaintiffs’ free speech rights far outweighs the rights of Defendants, and thus, the
Kennedy Plaintiffs satisfy the final elements needed to show entitlement to a preliminary

injunction.
iv. Injunction Specificity
The Fifth Circuit modified this Court’s original Preliminary Injunction Order in Missouri
v. Biden. Therefore, this Court will use the Fifth Circuit’s modified Order.
C. Request for Stay
On October 20, 2023, the Supreme Court of the United States stayed the Preliminary
Injunction in Missouri v. Biden until the Supreme Court “sends down a judgment.” This Court has
decided to GRANT the Kennedy Plaintiffs’ Motion for Preliminary Injunction against the same
Defendants and on the same grounds as in Missouri v. Biden. This Court agrees with Defendants
that the effect of this Preliminary Injunction should also be STAYED until the Supreme Court
hands down a ruling in Missouri v. Biden.
The Supreme Court decision in Missouri v Biden will answer many of the issues raised in
this case. Therefore, the stay issued in this case will be automatically lifted on the eleventh (11th)
day after the ruling in Missouri v. Biden is handed down by the Supreme Court.

D. Request for Class Certification
The Kennedy Plaintiffs have requested this matter be certified as a class action. No
determination is being made on that issue at this time. This ruling only addresses the claims of the
Kennedy Plaintiffs, not the prospective class.
V. CONCLUSION
For the reasons set forth herein,
IT IS ORDERED that the Motion for Preliminary Injunction [Doc. No. 6] filed by the
Kennedy Plaintiffs is GRANTED IN PART AND DENIED IN PART.
IT IS FURTHER ORDERED that the White House Defendants, Surgeon General
Defendants, CDC Defendants, FBI Defendants, and CISA Defendants, and their employees and
agents, shall take no actions, formal or informal, directly or indirectly, to coerce or significantly

encourage social-media companies to remove, delete, suppress or reduce, including through
altering their algorithms, posted social-media content containing protected free speech. That
includes, but is not limited to, compelling the platforms to act, such as by intimating that some
form of punishment will follow a failure to comply with any request, or supervising, directing, or
otherwise meaningfully controlling the social-media companies’ decision making process.
IT IS FURTHER ORDERED that in light of the stay issued by the Supreme Court of the
United States in Missouri v. Biden, this order is STAYED for ten (10) days after the Supreme
Court sends down a ruling in Missouri v. Biden.
IT IS FURTHER ORDERED that no security is required to be posted by the Kennedy
Plaintiffs under Federal Rule of Civil Procedure 65.
IT IS FURTHER ORDERED that no evidentiary hearing is required at this time.
IT IS FURTHER ORDERED that the Motion for Preliminary Injunction [Doc. No. 6] is
DENIED as to the State Department Defendants, the NIAID Defendants, the U.S. Food and Drug
Administration, the U.S. Department of Treasury, the U.S. Election Assistance Commission, and
the U.S. Department of Commerce, along with their directors and/or employees.
MONROE, LOUISIANA, this 14" day of Febuary 2024. / %

TERRY A. DOUGHTY, C □□□
UNITED SFATES DISTRICT © □
WESTERN DISTRICT OF LOUISIANA

24

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10196076. Public record. Not legal advice.