Amicus Curiae Brief — Vivek H. Murthy, Surgeon General, et al., Petitioners v. Missouri, et al.

Supreme Court briefFeb 9, 2024

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Text

No. 23-411

In the Supreme Court of the United States

__________

VIVEK H. MURTHY, SURGEON GENERAL, ET AL.,

Petitioners,

v.

STATE OF MISSOURI, ET AL.,

Respondents.

____________________

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________

BRIEF FOR REPRESENTATIVE JIM JORDAN

AND 44 OTHER MEMBERS OF CONGRESS AS

AMICI CURIAE IN SUPPORT

OF RESPONDENTS

__________

GENE P. HAMILTON

REED D. RUBINSTEIN

MICHAEL DING

America First Legal

Foundation

611 Pennsylvania Ave. SE

#231

Washington, DC 20003

(202) 964-3721

gene.hamilton@aflegal.org

CHRISTOPHER E. MILLS

Counsel of Record

Spero Law LLC

557 East Bay Street

#22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

TABLE OF CONTENTS

Page

Table of Contents .......................................................... i

Table of Authorities .....................................................ii

Interest of Amici Curiae .............................................. 1

Summary of the Argument ......................................... 3

Argument ..................................................................... 6

I.

The United States has coerced speech about

COVID. .............................................................. 6

II. The United States has coerced speech about

Biden Family influence peddling. .................. 15

III. The United States has coerced speech about

elections. .......................................................... 23

A. Cybersecurity and Infrastructure Security

Agency (CISA) ............................................. 23

B. The Election Integrity Partnership (EIP) .. 27

IV. The United States is funding research and

tools to enable censorship at scale. ................ 34

Conclusion .................................................................. 36

ii

TABLE OF AUTHORITIES

CASES

Anderson v. Bessemer City,

470 U.S. 564 (1985) .................................................. 4

Arizona Free Enter. Club’s Freedom Club PAC v.

Bennett,

564 U.S. 721 (2011) .............................................. 4, 5

Barr v. Am. Ass’n of Pol. Consultants, Inc.,

140 S. Ct. 2335 (2020) .............................................. 5

Dennis v. United States,

341 U.S. 494 (1951) .................................................. 4

Easley v. Cromartie,

532 U.S. 234 (2001) .................................................. 5

Kennedy v. Warren,

66 F.4th 1199 (9th Cir. 2023) .................................. 4

McIntyre v. Ohio Elections Comm’n,

514 U.S. 334 (1995) ................................................ 23

Norwood v. Harrison,

413 U.S. 455 (1973) ................................................ 34

Snyder v. Phelps,

562 U.S. 443 (2011) .............................................. 3, 5

Texas v. Johnson,

491 U.S. 397 (1989) .................................................. 3

CONSTITUTIONAL AND STATUTORY

PROVISIONS

U.S. Const. amend. I ........ 1, 3, 4, 5, 13, 15, 22, 23, 28

iii

6 U.S.C. § 652 ........................................................... 23

OTHER AUTHORITIES

Nandita Bose and Elizabeth Culliford, Biden Says

Facebook, Others ‘Killing People’ by Carrying

COVID Misinformation, Reuters (Jul. 16, 2021),

https://tinyurl.com/zpt53rna .................................. 11

Center for Internet Sec., EI-ISAC,

https://www.cisecurity.org/ei-isac (last visited Jan.

5, 2024) ................................................................... 26

Cybersecurity and Infrastructure Sec. Agency, Mis-,

Dis-, and Malinformation Planning and Incident

Response Guide for Election Officials 1 (2022),

https://tinyurl.com/52pvpn5d. ............................... 24

Declaration of Yoel Roth, ¶¶ 10–11, Federal Elections

Commission MUR 7821, (Dec. 17, 2020),

https://tinyurl.com/3mmzx2bk .............................. 18

Deposition of Brian Scully, 11:19–12:6, (available

at https://tinyurl.com/2epb2mw9) (D. Ct. Doc. 2091) ....................................................................... 24, 25

Deposition of Elvis Chan at 248:5–250:21 (D. Ct.

Doc. 204-1) .................................................. 18, 20, 21

Miranda Devine, Media Helped Hide the Real Joe

Biden by Censoring Hunter Stories, New York Post

(Nov. 28, 2021), https://tinyurl.com/mvp474ba..... 22

Election Integrity P’ship, The Long Fuse:

Misinformation and the 2020 Election 2 (2021),

https://tinyurl.com/4frucxab .......... 27, 28, 29, 33, 34

iv

Bruce Golding, Zuckerberg Says Facebook Censored

the Post’s Hunter Biden Stories Because FBI

Warned of Russian Misinfo ‘Dump,’ New York Post

(Aug. 26, 2022), https://tinyurl.com/5n8xz6xd ...... 17

Betsy Klein, White House Reviewing Section 230

Amid Efforts to Push Social Media Giants to Crack

Down on Misinformation, CNN (Jul. 20, 2021),

https://tinyurl.com/73hnfk3h ................................. 14

Letter from John B. Bellinger III to the Hon. Jim

Jordan, Chairman, H. Comm. on the Judiciary

(June 14, 2023) (on file with the H. Comm. on the

Judiciary) ............................................................... 31

Letter from John B. Bellinger III to the Hon. Jim

Jordan, Chairman, H. Comm. on the Judiciary

(July 7, 2023) (on file with the H. Comm. on the

Judiciary) ............................................................... 31

Letter from John B. Bellinger III to Rep. Jim Jordan,

Chairman, H. Comm. on the Judiciary (July

27, 2023) (on file with the H. Comm. on the

Judiciary) ............................................................... 29

Letter from Rep. Jordan, Chairman, House Comm on

the Jud., to the Hon. Christopher Wray, Director,

FBI (July 20, 2023), https://tinyurl.com/3m7a6wsa

...................................... 15, 16, 17, 18, 19, 20, 21, 22

Emma-Jo Morris & Gabrielle Fonrouge, Smokinggun Email Reveals how Hunter Biden Introduced

Ukrainian Businessman to VP Dad, New York Post

(Oct. 14, 2020), https://tinyurl.com/v7maymv8 .... 16

v

Steven Nelson, The Post’s FB Traffic Tanked After

WH Aide’s False Claim of ‘Churning Out Articles

Every Day About People Dying’ From COVID Vax,

New York Post (Aug. 4, 2023),

https://tinyurl.com/rrmtzkk ..................................... 9

Office of Inspector Gen., Dep’t of Homeland Sec.,

OIG-22-58, DHS Needs a Unified Strategy to

Counter Disinformation Campaigns 5 (Aug. 10,

2022), https://tinyurl.com/2p9h2p75 ..................... 24

Oversight of the Department of Homeland Security:

Hearing Before the H. Comm. on the Judiciary,

118th Cong. (July 26, 2023) ................................... 25

Oversight of the Federal Bureau of Investigation:

Hearing Before the H. Comm. on the Judiciary,

118th Cong. (July 12, 2023) ................................... 22

Rep. Jim Jordan (@Jim_Jordan), Twitter (July 27,

2023, 12:03 PM), https://tinyurl.com/5nz8sn3b

(“THE FACEBOOK FILES PART 1”) ..................... 7

Rep. Jim Jordan (@Jim_Jordan), Twitter (July 28,

2023, 12:03 PM), https://tinyurl.com/3z5npf92

(“THE FACEBOOK FILES PART 2”) ..................... 7

Rep. Jim Jordan (@Jim_Jordan), Twitter (Aug. 3,

2023, 11:00 AM), https://tinyurl.com/4kjvehbb

(“THE FACEBOOK FILES PART 3”) ..................... 7

Rep. Jim Jordan (@Jim_Jordan), Twitter (Aug. 7,

2023, 10:11 AM), https://tinyurl.com/yebawzjr

(“THE FACEBOOK FILES PART 4”) ..................... 7

Rep. Jim Jordan (@Jim_Jordan), Twitter (Sept. 5,

2023, 6:17 PM), http://tinyurl.com/4e7a65xx (“THE

FACEBOOK FILES PART 5”) ................................. 7

vi

Rep. Jim Jordan (@Jim_Jordan), Twitter (Nov. 30,

2023, 8:44 AM), http://tinyurl.com/3ma78m8x

(“THE YOUTUBE FILES PART 1”)........................ 7

Rep. Jim Jordan (@Jim_Jordan), Twitter (Nov. 30,

2023, 8:44 AM), http://tinyurl.com/4hpkfz39 (“THE

YOUTUBE FILES PART 1”) ................................. 10

Rep. Jim Jordan (@Jim_Jordan), Twitter (Dec. 1,

2023, 2:26 PM), http://tinyurl.com/ms7amj7x (“THE

YOUTUBE FILES PART 2”) ................................... 7

Rep. Jim Jordan (@Jim_Jordan), Twitter (Feb. 5.

2024, 5:44 PM), http://tinyurl.com/mwxmzb79

(“THE AMAZON FILES”) .................................. 7, 11

Sen. Ted Cruz (@tedcruz), Twitter (Oct. 27, 2022,

12:34 PM), https://tinyurl.com/2s9dce95 ............... 26

Staff of the H. Comm. on the Jud., 118th Cong.,

Interim Staff Report: The Weaponization of CISA

(June 26, 2023), available at https://bit.ly/45jYPke

(D. Ct. Doc. 291-2) ............................................ 23, 24

Staff of the H. Comm. on the Jud., 118th Cong.,

Interim Staff Report: The Weaponization of

“Disinformation” 20 (Nov. 6, 2023), available at

http://tinyurl.com/2n53pdy5 ... 25, 26, 27, 28, 29, 30,

32, 33, 34

Staff of H. Comm. on the Jud., Select Subcomm. on

the Weaponization of the Fed. Gov’t, & Permanent

Select Comm. on Intel., 118th Cong., The Hunter

Biden Statement: How Senior Intelligence

Community Officials and the Biden Campaign

Worked to Mislead American Voters 1 (2023),

https://tinyurl.com/47v4fxb8.................................. 16

vii

Staff of H. Comm. on the Jud., Select Subcomm. on

the Weaponization of the Fed. Gov’t of the H.

Comm. on the Judiciary, 118th Cong., The

Weaponization of The National Science Foundation:

How NSF Is Funding The Development of

Automated Tools to Censor Online Speech

“At Scale” and Trying to Cover Up Its Actions

(Comm. Print Feb. 2024),

http://tinyurl.com/2532hdp5 ...................... 34, 35, 36

Stanford Internet Observatory, the University of

Washington’s Center for an Informed Public, the

Atlantic Council’s Digital Forensics Research Lab,

and Graphika. ........................................................ 28

Matt Taibbi (@mtaibbi), Twitter (Mar. 2, 2023, 12:00

PM), https://tinyurl.com/3pmhu8j6 ....................... 30

Ryan Tracy, Facebook Bowed to White House

Pressure, Removed Covid Posts, The Wall Street

Journal (July 28, 2023),

https://tinyurl.com/2bepvs5t .................................. 15

Transcribed Interview of Alex Stamos before the

House Committee on the Judiciary and the Select

Subcommittee on the Weaponization of the Federal

Government (June 23, 2023) ........................... 30, 31

Transcribed Interview of David Agranovich before

the House Committee on the Judiciary and the

Select Subcommittee on the Weaponization of the

Federal Government (May 16, 2023) .................... 19

Transcribed Interview of Laura Dehmlow before the

House Committee on the Judiciary and the Select

Subcommittee on the Weaponization of the Federal

Government (July 17, 2023) ................ 16, 19, 20, 21

viii

Transcribed Interview of Nathaniel Gleicher before

the House Committee on the Judiciary and the

Select Subcommittee on the Weaponization of the

Federal Government (June 21, 2023).................... 19

U.S. Dep’t of State, About Us—Global Engagement

Center, https://tinyurl.com/43dmawd9 (last visited

Jan. 5, 2024) ........................................................... 30

INTEREST OF AMICI CURIAE

Amici curiae are Representative Jim Jordan and

44 other Members of Congress. The full list of amici

appears on the following page.*

Each Member of Congress has taken an oath to

uphold the Constitution and laws of the United States,

and they have an institutional interest in protecting

First Amendment rights from encroachment by the

executive branch, protecting the rule of law, and

holding the executive branch accountable when it

overreaches. This interest also includes ensuring that

the courts police those constitutional boundaries.

Each Member signatory is concerned that the

Biden Administration has violated the Constitution

and abridged Americans’ civil liberties. Congress—

and the House Judiciary Committee and the

Weaponization Subcommittee, in particular—has

been investigating the executive branch’s coercion and

collusion with social media companies to censor

speech. Evidence recently obtained by these

investigations further corroborates the district court’s

findings and the opinions below. Thus, each Member

signatory has a substantial interest in this case and

offers a unique perspective by virtue of his or her role

in Congress.

* Under Rule 37.6, no counsel for a party authored this brief in

whole or in part, and no person other than amici curiae, their

members, or their counsel made a monetary contribution to its

preparation or submission.

2

The following is the full list of amici:

United States Senate

Mike Braun

Ted Cruz

Josh Hawley

Ron Johnson

Roger Marshall, M.D.

Rand Paul

United States House of Representatives

Jim Jordan

Elise M. Stefanik

Kelly Armstrong

Jim Banks

Aaron Bean

Andy Biggs

Dan Bishop

Eric Burlison

Kat Cammack

Jerry L. Carl

Ben Cline

Michael Cloud

Andrew S. Clyde

Jeff Duncan

Scott Fitzgerald

Russell Fry

Matt Gaetz

Lance Gooden

Harriet M. Hageman

Erin Houchin

Darrell E. Issa

Ronny Jackson

Anna Paulina Luna

Thomas Massie

Mary E. Miller

Max L. Miller

Alexander X. Mooney

Barry Moore

Troy E. Nehls

Ralph Norman

Andy Ogles

Guy Reschenthaler

Matthew M.

Rosendale, Sr.

Keith Self

Gregory W. Steube

Claudia Tenney

William R. Timmons,

IV

Michael Waltz

Daniel Webster

3

SUMMARY OF THE ARGUMENT

Wielding threats of intervention, the executive

branch of the federal government has engaged in a

sustained effort to coerce private parties into

censoring speech on matters of public concern. On

issue after issue, the Biden Administration has

distorted the free marketplace of ideas promised by

the First Amendment, bringing the weight of federal

authority to bear on any speech it dislikes—including

memes and jokes. Of course, Big Tech companies often

required little coercion to do the Administration’s

bidding on some issues. Generally eager to please

their ideological allies and overseers in the federal

government, these companies and other private

entities have repeatedly censored accurate speech on

important public issues. When the censors were too

slow to suppress speech that the partisans in the

Administration disliked, the federal government

prodded them back into action with continual and

increasing pressure.

Official pressure to suppress speech violates the

First Amendment. “[A] principal function of free

speech under our system of government is to invite

dispute. It may indeed best serve its high purpose

when it induces a condition of unrest, creates

dissatisfaction with conditions as they are, or even

stirs people to anger.” Texas v. Johnson, 491 U.S. 397,

408–09 (1989) (cleaned up). No doubt, the government

may find some individuals’ speech “misguided, or even

hurtful,” but “the point of all speech protection is to

shield just those choices of content.” Snyder v. Phelps,

562 U.S. 443, 458 (2011) (cleaned up). “The First

Amendment embodies our choice as a Nation that,

4

when it comes to such speech, the guiding principle is

freedom—the unfettered interchange of ideas—not

whatever the State may view as fair.” Arizona Free

Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S.

721, 750 (2011) (cleaned up). The First Amendment is

founded on “the hypothesis that speech can rebut

speech, propaganda will answer propaganda, [and]

free debate of ideas will result in the wisest

governmental policies.” Dennis v. United States, 341

U.S. 494, 503 (1951). Thus, the First Amendment

stands against any governmental effort to coerce or

otherwise burden the free speech of private entities—

even if that action falls short of outright suppression.

Cf. Kennedy v. Warren, 66 F.4th 1199, 1213 (9th Cir.

2023) (Bennett, J., concurring) (“[W]e do not require a

government official to list specific consequences in

order to find a constitutional violation.”).

Censorship-by-proxy is an especially nefarious

form of state action, given that it is designed to evade

detection, oversight efforts, and public records

requests. The district court found, as a matter of fact,

that “the United States Government, through the

White House and numerous federal agencies,

pressured and encouraged social-media companies to

suppress free speech.” J.A. 201. The Fifth Circuit

agreed. These factual findings must be upheld unless

clearly erroneous. “Where there are two permissible

views of the evidence, the factfinder’s choice between

them cannot be clearly erroneous.” Anderson v.

Bessemer City, 470 U.S. 564, 574 (1985). And “[w]here

an intermediate court reviews, and affirms, a trial

court’s factual findings”—as here—“this Court will not

lightly overturn the concurrent findings of the two

5

lower courts.” Easley v. Cromartie, 532 U.S. 234, 242

(2001).

The district court’s findings are easily

“permissible”; they are clearly correct. Beyond the

ample evidence cited by the courts below and the

Plaintiffs, even more recent evidence obtained by the

House Judiciary Committee and the Weaponization

Subcommittee confirms the conclusions reached

below. That evidence shows that the Biden

Administration has relentlessly pressured private

entities—sometimes in cooperation with other private

entities—to censor speech that the Administration

disliked. As detailed below, this official coercion has

undermined the marketplace of ideas on issues of

public importance ranging from COVID to federal

elections to Biden family misdeeds. And the

suppression “does not simply have an effect on speech,

but is directed at certain content and is aimed at

particular speakers”: conservative voices opposed to

the current Administration. Barr v. Am. Ass’n of Pol.

Consultants, Inc., 140 S. Ct. 2335, 2347 (2020). “This

sort of ‘beggar thy neighbor’ approach to free speech—

restricting the speech of some elements of our society

in order to enhance the relative voice of others—is

wholly foreign to the First Amendment.” Bennett, 564

U.S. at 741 (cleaned up). Likewise foreign to the First

Amendment are governmental efforts to coerce the

speech of private Americans. “As a Nation we have

chosen a different course—to protect even hurtful

speech on public issues to ensure that we do not stifle

public debate.” Snyder, 562 U.S. at 461.

Because the Biden Administration has repeatedly

used government coercion to stifle public debate—and

6

the

injunction

below

rightfully

halts

the

Administration’s unlawful conduct—the Court should

affirm.

ARGUMENT

I.

The United States has coerced speech about

COVID.

As the district court found, the federal government

“suppressed alternative views” about COVID-related

matters, including the origination of the virus, the

efficacy of vaccines and masks, and the adverse effects

of lockdowns, effectively forcing social media

companies to enforce the government’s view as “the

truth.” J.A. 213. The district court listed over twenty

examples of the government engaging in coercive acts

directed toward social media companies to bring about

censorship. J.A. 205–09. And the government’s

pressure campaign worked. Facebook agreed to

moderate certain COVID-related speech in response to

pressure from the Biden Administration, telling the

government that Facebook would rely on their

“authorities” to determine what content to censor.

J.A. 98. Echoing the White House’s own description,

the district court described the government’s direction

of the companies’ content choices as a “partner[ship].”

J.A. 210. The Fifth Circuit agreed, finding that the

social media companies “not only continued to take

down content the officials flagged, and provided

requested data to the White House, but they also

changed their moderation policies expressly in

accordance with the officials’ wishes.” J.A. 7; see

J.A. 49–68 (finding coercion and significant pressure

by the White House, FBI, CDC, and CISA based on a

detailed examination of the factual record).

7

Recent evidence corroborates these findings. The

House Judiciary Committee subpoenaed internal

documents from Meta, the parent entity of Facebook

and Instagram; Alphabet, the parent entity of Google

and YouTube; and Amazon. The documents obtained

confirm that the companies censored information and

altered their content moderation policies because of

pressure from the Biden Administration to rid their

platforms of purported “misinformation.”1

This pressure was direct and coercive. For

example, the Administration tried to suppress

discussion of COVID’s origins: when a Facebook

executive asked in July 2021 why the company

censored the COVID lab leak theory, an executive in

charge of content policy development said, “[b]ecause

we were under pressure from the [A]dministration” to

1 Rep. Jim Jordan (@Jim_Jordan), Twitter (July 27, 2023, 12:03

PM), https://tinyurl.com/5nz8sn3b (“THE FACEBOOK FILES

PART 1”); Rep. Jim Jordan (@Jim_Jordan), Twitter (July 28,

2023,

12:03

PM),

https://tinyurl.com/3z5npf92

(“THE

FACEBOOK FILES PART 2”); Rep. Jim Jordan (@Jim_Jordan),

Twitter (Aug. 3, 2023, 11:00 AM), https://tinyurl.com/4kjvehbb

(“THE FACEBOOK FILES PART 3”); Rep. Jim Jordan

(@Jim_Jordan), Twitter (Aug. 7, 2023, 10:11 AM),

https://tinyurl.com/yebawzjr (“THE FACEBOOK FILES PART

4”); Rep. Jim Jordan (@Jim_Jordan), Twitter (Sept. 5, 2023, 6:17

PM), http://tinyurl.com/4e7a65xx (“THE FACEBOOK FILES

PART 5”); Rep. Jim Jordan (@Jim_Jordan), Twitter (Nov. 30,

2023, 8:44 AM), http://tinyurl.com/3ma78m8x (“THE YOUTUBE

FILES PART 1”); Rep. Jim Jordan (@Jim_Jordan), Twitter (Dec.

1, 2023, 2:26 PM), http://tinyurl.com/ms7amj7x (“THE

YOUTUBE FILES PART 2”); Rep. Jim Jordan (@Jim_Jordan),

Twitter (Feb. 5. 2024, 5:44 PM), http://tinyurl.com/mwxmzb79

(“THE AMAZON FILES”).

8

do so.2 The same Facebook executive confessed that

the company “shouldn’t have done it.”3

Yet Facebook continued to do the Administration’s

bidding, repeatedly removing and reducing content

the federal government disfavored. The Biden White

House’s successful monthslong campaign to censor

views expressing or supporting vaccine hesitancy is

the clearest example of how the government coerced

social media companies to change the scope and

enforcement of their content moderation policies.

In a draft of an internal email, a Facebook

employee explained to CEO Mark Zuckerberg and

COO Sheryl Sandberg: “We are facing continued

pressure from external stakeholders, including the

[Biden] White House and the press, to remove more

COVID-19 vaccine discouraging content.”4

Another Facebook executive notified his team that

a senior advisor to President Biden was “outraged”

2 Ex. 1 (e-mail from Nick Clegg to Facebook employees (July 14,

2021, 11:46 AM)). All Exhibit cites are to the Appendix attached

to amici’s brief in the Fifth Circuit. See CA5 Doc. 224.

3 Ibid.

4 Ex. 2 (e-mail from Facebook employee to Facebook employees

(Apr. 27, 2021, 11:58 AM)) (emphasis in original).

9

“that [Facebook] did not remove” a meme that

bothered the Administration.5 Likewise, to appease

the Administration, Facebook demoted a video posted

by journalist Tucker Carlson that was critical of the

COVID vaccine, even though Facebook admitted that

the video did not violate company policy.6

Tucker Carlson was not the only prominent media

critic of the Biden Administration to be targeted by the

Administration’s censorship efforts. According to

Facebook’s internal notes of meetings with White

House senior advisors, White House officials

questioned whether Facebook’s enforcement of its

content moderation policies against the New York Post

was aggressive enough.7 Similarly, in April 2021, a

White House official questioned whether Facebook

could “change [its] algorithm so that people were more

likely to see [the New York Times], [the Wall Street

Journal], any authoritative news source over [the]

Daily Wire, Tomi Lahren, polarizing people.”8 The

White House’s requests were rooted in the

paternalistic notion that Americans cannot decide for

5 Ex. 3 (e-mail from Nick Clegg to Facebook employees (Apr. 19,

2021, 9:40 AM)).

6 Ibid.

7 Ex. 4 (Facebook employee’s notes of a call between White House

personnel and Facebook employees on March 26, 2021). The New

York Post’s traffic on Facebook subsequently plummeted by over

50 percent before rebounding to “normal levels” by fall 2021.

Steven Nelson, The Post’s FB Traffic Tanked After WH Aide’s

False Claim of ‘Churning Out Articles Every Day About People

Dying’ From COVID Vax, New York Post (Aug. 4, 2023),

https://tinyurl.com/rrmtzkk.

8 Ex. 5 (Facebook employee’s notes of a call between White House

personnel and Facebook employees on April 14, 2021).

10

themselves what information should or should not be

believed. As a White House staffer condescendingly

remarked in a meeting with Facebook in April 2021,

“[i]f someone in rural Arkansas sees something on

[Facebook], it’s the truth.”9 In a June 2021 meeting,

the White House pushed Facebook to “reduce the

spread of bad information,” i.e., “bad” information

according to the White House.10

The White House exerted similar pressure on

YouTube. The government’s demands for meetings

and information on YouTube’s policies and removals

led to warnings within YouTube that the Biden “White

House is very interested in our work on borderline

content” and should be briefed again “to prevent

anything from potentially spiraling out of control.”11

YouTube considered this approach necessary because

it was “seek[ing] to work closely with [the Biden]

administration on multiple policy fronts.”12

The White House’s pressure extended to Amazon,

the world’s largest online bookstore. Senior White

House officials ran key searchers for topics such as

“vaccine” and emailed Amazon employees directly

when displeased with how the search results

9 Ex. 6 (Facebook employee’s notes of a call between White House

personnel and Facebook employees on April 5, 2021).

10 Ex. 7 (Facebook employee’s notes of a call between White House

personnel and Facebook employees on June 15, 2021).

11 Rep. Jim Jordan (@Jim_Jordan), Twitter (Nov. 30, 2023, 8:44

AM), http://tinyurl.com/4hpkfz39 (“THE YOUTUBE FILES

PART 1”).

12 Ibid.

11

appeared.13 One internal Amazon email regarding a

“Pre-Brief for Meeting w/ the White House” started

with this “Top Talking Point[]”: “Is the Admin asking

us to remove books, or are they more concerned about

search results/order (or both)?”14 Other internal

emails reveal that Amazon was “feeling pressure from

the White House” on this issue.15 The Committee’s

investigation remains ongoing, but there is evidence

that Amazon adopted new policies, including

“enabl[ing] Do Not Promote for anti-vax books,”

because of pressure from the White House.16

Not only did the Biden Administration privately

coerce Facebook and other companies into censoring

information, it also engaged in a public relations

campaign against the companies to pressure them into

submission. In July 2021, President Biden publicly

denounced these companies, particularly Facebook,

claiming they were “killing people” by not censoring

alleged “misinformation” to the government’s

satisfaction.17

Facebook

employees

internally

lamented that the Biden White House’s “definition of

‘misinfo’ is completely unclear.”18 Following the White

House’s pressure, Facebook leadership—internally

13 Rep. Jim Jordan (@Jim_Jordan), Twitter (Feb. 5. 2024, 5:44

PM), http://tinyurl.com/mwxmzb79 (“THE AMAZON FILES”).

14 Ibid.

15 Ibid.

16 Ibid.

17 Nandita Bose and Elizabeth Culliford, Biden Says Facebook,

Others ‘Killing People’ by Carrying COVID Misinformation,

Reuters (Jul. 16, 2021), https://tinyurl.com/zpt53rna.

18 Ex. 8 (e-mail from Facebook employee to Facebook employees

(July 16, 2021, 8:14 PM)).

12

admitting that the move was “stemming from the

continued criticism of our approach from the [Biden]

administration”—directed employees to “brainstorm

some additional policy levers we can pull to be more

aggressive against . . . misinformation.”19 Ultimately,

the company adopted four new, more aggressive policy

options one month later.20

Likewise, before meeting with the Biden

Administration’s Office of the Surgeon General (OSG),

a Facebook employee wrote that Sheryl Sandberg “is

keen that we continue to explore some moves that we

can make to show that we are trying to be responsive

to the [White House].”21 The email continued: “My

sense is that our current course—in effect explaining

ourselves more fully, but not shifting on where we

draw the lines . . . is a recipe for protracted and

increasing acrimony with the [White House].”22

Internal documents obtained by the House Judiciary

Committee and the Weaponization Subcommittee

show that the Biden Administration pressured

Facebook to censor information about the COVID

vaccine’s side effects, even if the information was

true.23 In a July 2021 meeting with OSG, a Facebook

19 Ex. 9 (e-mail from Facebook employee to Facebook employees

(Aug. 6, 2021, 7:13 PM)).

20 Ex. 10 (e-mail from Nick Clegg to Facebook employees (Aug.

19, 2021, 5:25 PM)).

21 Ex. 11 (e-mail from Facebook employee to Facebook employees

(July 22, 2021, 12:17 PM)).

22 Ibid.

23 Ex. 12 (e-mail from Sheryl Sandberg to Nick Clegg (Jul. 21,

2021, 4:49 PM)) (“The Surgeon General wants us to remove true

information about side effects.”).

13

employee confirmed that Facebook was demoting

content that questioned whether vaccine mandates

constituted

“government

overreach,”

despite

acknowledging “[t]hat’s not false information.”24

Worse still, when Facebook questioned censoring

information, the Biden Administration showed

disdain and contempt for the First Amendment. For

example, when the Administration flagged satirical

content about the COVID vaccine, a Facebook

executive first warned that removing satirical content

would “represent a significant incursion into

traditional boundaries of free expression in the US.”25

But the Biden Administration was unpersuaded,

insisting that the content “inhibits confidence” in the

COVID vaccine.26

A Facebook vice president warned internally that

the company was at “a crossroads” with the

Administration over its censorship efforts.27 Facebook

executives grasped the connection between the

company’s business prospects and remaining in the

Administration’s good graces. One executive,

recommending that the company consider bending to

the Administration’s censorship requests, cautioned

COO Sheryl Sandberg that Facebook had “bigger fish

24 Ex. 13 (Facebook employee’s notes of a call between OSG

personnel and Facebook employees on July 16, 2021).

25 Ex. 3 (e-mail from Nick Clegg to Facebook employees).

26 Ibid.

27 Ibid.

14

we have to fry with the Administration — data flows

etc.”28

Another looming issue was—and still is—reform of

Section 230 of the Communications Decency Act. As

the district court explained, Section 230 is “valuable”

to Big Tech because of its legal protections. J.A. 210.

And the district court found that the federal

government “threat[ened]” Big Tech with the repeal of

Section 230 to induce compliance with its censorship

campaign. Ibid. Mark Zuckerberg has referred to the

possibility of antitrust enforcement as an “existential

threat” to his empire. J.A. 95. Four days after

President Biden publicly accused Facebook of “killing

people,” the White House Communications Director

publicly said the Administration was “reviewing”

Section 230 reform as an option because the social

media companies “should be held accountable.”29

Internal documents show that Facebook executives

feared that the Biden Administration would retaliate

against the company for not censoring enough: one

executive commented that the dispute over content

was not “a great place for us to be,” and he would be

“grateful for any further creative thinking on how we

can be responsive to their [content] concerns.”30 In

response to mounting pressure, Facebook capitulated:

“By August 2021, Facebook executives were emailing

28 Ex.

11 (e-mail from Facebook employee to Facebook

employees).

29 Betsy Klein, White House Reviewing Section 230 Amid Efforts

to Push Social Media Giants to Crack Down on Misinformation,

CNN (Jul. 20, 2021), https://tinyurl.com/73hnfk3h.

30 Ex. 11 (e-mail from Facebook employee to Facebook

employees).

15

each other about new planned changes to their Covid

content policies,” including increased punishments for

violators.31

In short, the Biden Administration used its power

to commandeer the apparatuses of social media

companies to affect their COVID-related content

policies. And out of self-interest, the companies

complied and censored content beyond what they

otherwise would have. This government coercion

violates the First Amendment.

II.

The United States has coerced speech about

Biden Family influence peddling.

The federal government, specifically the FBI’s

Foreign Influence Task Force (FITF), also used its

power and influence to deceive and coerce social media

companies into suppressing factual information

during the 2020 election about the Biden family that

the FBI knew to be true.32 The district court rightly

labeled “[t]he FBI’s failure to alert social-media

companies that the Hunter Biden laptop story was

real, and not mere Russian disinformation,” as

“particularly troubling.” J.A. 218. The laptop

contained documents and emails with incriminating

details about foreign business dealings that also

Ryan Tracy, Facebook Bowed to White House Pressure,

Removed Covid Posts, The Wall Street Journal (July 28, 2023),

https://tinyurl.com/2bepvs5t; see also Ex. 10 (E-mail from Nick

Clegg to Facebook employees).

32 Letter from Rep. Jordan, Chairman, House Comm on the Jud.,

to the Hon. Christopher Wray, Director, FBI, at 1 (July 20, 2023),

https://tinyurl.com/3m7a6wsa.

31

16

implicated Hunter Biden’s father—then-presidential

candidate, Joe Biden.33

In a transcribed interview before the House

Judiciary

Committee

and

Weaponization

Subcommittee, the current Section Chief of FITF,

Laura Dehmlow, testified that (1) FBI agents who

knew the laptop was real were some of the same FBI

agents who repeatedly warned social media companies

about a potential “hack-and-leak” likely to occur in

October 2020; and (2) despite direct requests from

Twitter and Facebook for information on the day the

New York Post story was published, the FBI decided

to deliberately withhold critical information from the

social media companies.34

Although the FBI had the authenticated laptop in

its possession since December 2019, it did not publicly

acknowledge that it was real until after the November

3, 2020, election.35 Rather than acknowledge the

truth, the FBI actively influenced and deceived the

33 Emma-Jo Morris & Gabrielle Fonrouge, Smoking-gun Email

Reveals how Hunter Biden Introduced Ukrainian Businessman to

VP Dad, New York Post (Oct. 14, 2020), https://tinyurl.com/

v7maymv8; Staff of H. Comm. on the Jud., Select Subcomm. on

the Weaponization of the Fed. Gov’t, & Permanent Select Comm.

on Intel., 118th Cong., The Hunter Biden Statement: How Senior

Intelligence Community Officials and the Biden Campaign

Worked to Mislead American Voters 1, 6 (2023),

https://tinyurl.com/47v4fxb8.

34 Ex. 14 (excerpts of Transcribed Interview of Laura Dehmlow

before the House Committee on the Judiciary and the Select

Subcommittee on the Weaponization of the Federal Government

(July 17, 2023)), at 29–37, 173–174.

35 Jordan, supra note 32, at 5.

17

social media companies to censor the story when it

inevitably came out.36 In a well-executed, monthslong

plan, the FBI primed the narrative, telling social

media companies to “look for a ‘hack and dump’

operation by the Russians prior to the 2020 election.”37

Then, once the laptop’s contents were exposed, the FBI

refused to answer questions and let the narrative it

had constructed do its work of distracting from and

minimizing the truth. Mark Zuckerburg’s justification

for censoring the story illustrates the effectiveness of

this plan: “the FBI basically came to us” and

said, “‘you should be on high alert.’”38 Facebook

censored the story because when “[the FBI] come[s] to

us and tell[s] us that we need to be on guard about

something, then I want to take that seriously,” and the

story “basically fit the pattern” the FBI warned

about.39 This federal coercion led to the censorship of

accurate information.

In “the nine months leading up to the 2020 election,

the FBI met over 30 times with social media

platforms—all while in possession of Hunter Biden’s

laptop.”40 The FBI had “at least five meetings with

Facebook, Google, Microsoft, [and] Yahoo!, in addition

to multiple meetings with Twitter and Reddit.”41 Yoel

36 Id. at 1.

37 Id. at 4.

38 Bruce Golding, Zuckerberg Says Facebook Censored the Post’s

Hunter Biden Stories Because FBI Warned of Russian Misinfo

‘Dump,’ New York Post (Aug. 26, 2022), https://tinyurl.com/

5n8xz6xd.

39 Ibid.

40 Jordan, supra note 32, at 1.

41 Ibid.

18

Roth, former Head of Site Integrity at Twitter,

confirmed in a sworn declaration that he had regular

meetings in 2020 with different federal agencies,

including the FBI, in which they “communicated that

they expected ‘hack-and-leak operations’” against

those associated with political campaigns “shortly

before the 2020 presidential election, likely in

October.”42 “These expectations of hack-and-leak

operations were discussed throughout 2020.”43 He was

also told “that material obtained through those

hacking attacks would likely be disseminated over

social media platforms, including Twitter” and even

that there were rumors the materials could involve

Hunter Biden.44

The companies also participated together in

regular “USG-Industry” meetings, including four in

October 2020, with representatives from federal

agencies, including the FBI.45 During these meetings,

the FBI asked social media companies what their

“hack and leak” policies were, how the companies

would handle a potential “hack and leak,” and

whether the companies would remove hacked

materials from their platforms.46 In response, some

companies without a specific “hack and leak” policy,

42 Declaration

of Yoel Roth, ¶¶ 10–11, Federal Elections

Commission MUR 7821, (Dec. 17, 2020), https://tinyurl.com/

3mmzx2bk [hereinafter Roth Decl.].

43 Ibid.

44 Ibid.

45 Jordan, supra note 32, at 1.

46 Deposition of Elvis Chan at 248:5–250:21 (D. Ct. Doc. 204-1)

[hereinafter Chan Dep.]; see also Roth Decl., supra note 42, ¶ 11.

19

such as Facebook, developed and adopted a new policy

during summer 2020.47

Dehmlow confirmed that “the FBI could—and

did—share information with companies regarding

foreign malign influence operations, like hack-andleak operations, including those conducted by Russiaaligned actors.”48 For example, the agenda for the

October 7, 2020 “USG-Industry” meeting—one week

before the October 14 New York Post story—lists

“Hack/Leak Concerns” as a topic.49

According to Dehmlow, on the day the article was

published, FBI met with Twitter, and a company

representative asked if the laptop was real.50

Dehmlow testified that, in response, “one of the FBI

folks who was on the call” confirmed that the laptop

was real before “another participant jumped in and

said, ‘no further comment.’”51 After the meeting, FBI

personnel “deliberated internally” and determined

that—even though they knew the laptop was not

Russian

disinformation—in

all

further

See Ex. 15 (excerpts of Transcribed Interview of David

Agranovich before the House Committee on the Judiciary and the

Select Subcommittee on the Weaponization of the Federal

Government (May 16, 2023)); Ex. 16 (excerpts of Transcribed

Interview of Nathaniel Gleicher before the House Committee on

the Judiciary and the Select Subcommittee on the Weaponization

of the Federal Government (June 21, 2023)).

48 Jordan, supra note 32, at 2; Ex. 14 (Laura Dehmlow

Transcribed Interview), at 173–74.

49 Ex. 17 (e-mail from Facebook employee to Matthew Masterson

and Brian Scully (Sept. 29, 2020, 11:41 AM).

50 Ex. 14 (Laura Dehmlow Transcribed Interview), at 29.

51 Ibid.

47

20

communications with social media companies the FBI

would reply with “no comment.”52

According to Dehmlow, later that same day, the

FBI met with Facebook. This time the FBI had its

story straight. When Facebook asked whether the

laptop was real, Dehmlow, on behalf of the FBI, said,

“no comment.”53 The FBI has thus far refused to reveal

to Congress the identities of the FBI official who told

Twitter that the laptop was real, the FBI lawyer who

instructed “no further comment” during the call with

Twitter, or the FBI official who determined that the

agency would respond only “no comment” when asked

about Hunter Biden laptop’s authenticity going

forward.54

Facebook followed up again the next day, October

According to an internal Facebook document

obtained by the House Judiciary Committee and the

Weaponization Subcommittee, a Facebook employee

(and former FBI official) “spoke with SSA Elvis Chan

(FBI San Francisco) on 15 October 2020, as a follow up

to the call with the Foreign Influence Task Force on

14 October.”56 Facebook again asked if the FBI had

any new information, to which “Chan advised that he

was up to speed on the current state of the matter

15.55

52 Id. at 33.

53 Id. at 33; see also Chan Dep., supra note 46, at 215.

54 See Ex. 14 (Laura Dehmlow Transcribed Interview), at 29–31;

Jordan, supra note 32, at 5–6 (requesting a response by August

3, 2023).

55 Ex. 18 (entry on internal Facebook case file by Facebook

employee (Oct. 15, 2020)).

56 Ibid.

21

within the FBI and that there was no current evidence

to suggest any foreign connection or direction of the

leak.”57 But of course, the FBI knew not just of the

absence of evidence suggesting any foreign connection;

the FBI knew the laptop was real.58

This internal Facebook document directly conflicts

with the deposition testimony FBI Special Agent Elvis

Chan provided in this case. Chan testified that he was

“confident” that he “was not a party to any meeting

with social media companies where Hunter Biden was

discussed outside of the [October 14 FITF-Facebook

meeting where Laura Dehmlow responded ‘no

comment’].”59 Later, when asked if, other than the

October 14 FITF-Facebook meeting, he was “aware of

any communications between anyone at Facebook and

anyone at the FBI related to the Hunter Biden laptop

story,” Chan responded, “No.”60

57 Id. Chan testified in his deposition that, unlike Dehmlow, FITF

Section Chief Bradley Benavides, the Russia Unit Chief of FITF,

and other FITF personnel, he did not know prior to October 14

that the FBI had the laptop. Cf. Chan Dep., supra note 46, at

230:7–19; Ex. 14 (Laura Dehmlow Transcribed Interview), at 37.

58 Jordan, supra note 32; Ex. 14 (Laura Dehmlow Transcribed

Interview), at 37.

59 Cf. Chan Dep., supra note 46, at 215:22–216:16; Ex. 18 (entry

on internal Facebook case file by Facebook employee (Oct. 15,

2020)).

60 Chan Dep., supra note 46, at 233:22–234:3.

22

As a result of the FBI’s withholding critical

information on the day of (and in the days after) the

New York Post article’s publication, the social media

companies began to do precisely what the FBI

intended: suppress truthful First Amendmentprotected speech less than three weeks before the

presidential election.61 The story implicating one of

the two major party candidates was blocked by

Twitter and deamplified by Facebook, “significantly

reducing its circulation and prevalence in users’

newsfeeds,”62 all because the FBI—an organization

that the companies felt compelled to follow—had led

them to believe the laptop story was Russian

disinformation.63 The story was not Russian

disinformation, and FBI personnel meeting with

Twitter and Facebook knew at the time that it was not

Russian disinformation.64 The government’s coercive

manipulation of the marketplace of ideas no doubt

affected the 2020 election.65 The district court’s

61 Jordan, supra note 32.

62 Ibid.

63 FBI Director Wray testified that “the FBI is not in the business

of moderating content or causing any social media company to

suppress or censor” speech. Oversight of the Federal Bureau of

Investigation: Hearing Before the H. Comm. on the Judiciary,

118th Cong. (July 12, 2023). On July 18, Chairman Jordan and

Representative Mike Johnson, Chairman of the Subcommittee on

the Constitution and Limited Government, wrote a letter to

Director Wray providing him the opportunity to amend his

testimony. Director Wray has not responded.

64 Jordan, supra note 32.

65 See Miranda Devine, Media Helped Hide the Real Joe Biden by

Censoring Hunter Stories, New York Post (Nov. 28, 2021),

https://tinyurl.com/mvp474ba.

23

findings that the federal government unlawfully

coerced private speech are amply supported by the

evidence.

III. The United States has coerced speech about

elections.

The United States also flouted the First

Amendment by coercing platforms into suppressing

election-related speech. This coercion is especially

troubling because speech pertaining to elections

“occupies the core of the protection afforded by the

First Amendment.” McIntyre v. Ohio Elections

Comm’n, 514 U.S. 334, 346 (1995). Yet the federal

government has repeatedly coerced social media

companies to censor election-related speech. It has

done so directly, through DHS’s Cybersecurity and

Infrastructure Security Agency (CISA), and indirectly,

through the private-sector Election Integrity

Partnership (EIP).66

A. Cybersecurity

and

Security Agency (CISA)

Infrastructure

Congress established CISA in 2018 to “lead

cybersecurity and critical infrastructure security

programs, operations, and associated policy.”67 CISA’s

“Countering Foreign Influence Task Force” (CFITF)

66 Staff of the H. Comm. on the Jud., 118th Cong., Interim Staff

Report: The Weaponization of CISA (June 26, 2023), available at

https://bit.ly/45jYPke (D. Ct. Doc. 291-2) [hereinafter Interim

CISA Report].

67 6 U.S.C. § 652.

24

focused “on election infrastructure disinformation.”68

But in an effort to expand its focus on foreign

misinformation to domestic misinformation, “CISA

transitioned its [CFITF] to promote more flexibility to

focus on general MDM,” or so-called “Mis-, Dis-, and

Malinformation.”69

CISA’s focus on so-called “malinformation” is

particularly

alarming.

According

to

CISA,

“[m]alinformation is based on fact, but used out of

context to mislead, harm, or manipulate.”70 Put more

plainly, “malinformation is factual information that is

objectionable not because it is false or untruthful, but

because it is provided without adequate ‘context’—

context as determined by the government.”71

In his deposition, Brian Scully, the first head of the

CFITF and later the head of the MDM team at CISA,72

said that CISA engaged in “switchboarding,” a

practice in which CISA would flag alleged

disinformation to social media platforms.73 According

to Scully, “switchboarding” involves CISA officials

first receiving alleged “misinformation” reports from

election officials and then forwarding those reports to

68 Office of Inspector Gen., Dep’t of Homeland Sec., OIG-22-58,

DHS Needs a Unified Strategy to Counter Disinformation

Campaigns 5 (Aug. 10, 2022), https://tinyurl.com/2p9h2p75.

69 Id. at 7.

70 Cybersecurity and Infrastructure Sec. Agency, Mis-, Dis-, and

Malinformation Planning and Incident Response Guide for

Election Officials 1 (2022), https://tinyurl.com/52pvpn5d.

71 Interim CISA Report, supra note 66, at 10.

72 Deposition

of Brian Scully, 11:19–12:6, (available at

https://tinyurl.com/2epb2mw9) (D. Ct. Doc. 209-1).

73 Id. at 23:16–24:2.

25

social media companies so that they could take

enforcement measures against the reported content.74

Scully admitted that CISA was aware that its

outreach to social media companies about alleged

misinformation would trigger content moderation.75

Petitioners highlight that CISA stated in its

communications with platforms that no “favorable or

unfavorable” action would be taken against them.

Br. 6. But CISA’s disclaimer pointedly did not make a

similar promise on behalf of other government

agencies (including the FBI) with whom CISA shared

ticket information.76 In other words, the disclaimer

“emphasized that CISA would involve law

enforcement agencies and that CISA would not (or

could not) commit that law enforcement agencies

would not take an unfavorable action based on how the

social media platforms decided to respond to the

misinformation report.”77 This omission was

significant. As the former Chief Security Officer of

Facebook explained, “I think all executives of all

74 Id. at 17:1–18:1.

75 Id.

at 17:15–18:1. In response to a question from

Representative Dan Bishop, DHS Secretary Mayorkas testified

that he believed that “it is true” that “CISA does not flag anything

to social media organizations at all,” but that he would “verify

that.” Oversight of the Department of Homeland Security:

Hearing Before the H. Comm. on the Judiciary, 118th Cong. (July

26, 2023). Secretary Mayorkas has failed to provide the Judiciary

Committee with any information to verify his testimony.

76 Staff of the H. Comm. on the Jud., 118th Cong., Interim Staff

Report: The Weaponization of “Disinformation” 20 (Nov. 6, 2023),

available at http://tinyurl.com/2n53pdy5 [hereinafter Interim

EIP Report].

77 Id. at 17.

26

public companies understand that there’s lots of parts

of the government that can punish you for activity that

you thought was appropriate.”78

CISA also funded and utilized third parties, such

as the Center for Internet Security (CIS), to achieve

these aims. CIS is the nonprofit entity responsible for

operating the Elections Infrastructure Information

Sharing and Analysis Center (EI-ISAC).79 The “EIISAC is federally funded by CISA and a division of the

Center for Internet Security.”80 The EI-ISAC allows

election officials around the country to send reports of

alleged “misinformation” to CIS, which CIS then

forwards to the relevant social media platforms.81

For example, a state government official working

for Pennsylvania’s Secretary of State, a Democrat,

reported to the EI-ISAC posts on Twitter and

Facebook from Senator Ted Cruz’s accounts.82 In the

offending post, Senator Cruz, a Republican, asked:

“Why is it only Democrat blue cities that take ‘days’ to

count their votes? The rest of the country manages to

get it done on election night.”83 Emblematic of this

78 Id. at 20.

79 Center for Internet Sec., EI-ISAC, https://www.cisecurity.org/

ei-isac (last visited Jan. 5, 2024).

80 Ibid.

81 Ibid.

82 Ex. 19 (e-mail from misinformation@cisecurity.org to Facebook

employees (Oct. 27, 2022, 5:06 PM)).

83 Sen. Ted Cruz (@tedcruz), Twitter (Oct. 27, 2022, 12:34 PM),

https://tinyurl.com/2s9dce95.

27

“switchboarding,” the federally funded EI-ISAC

forwarded the report to Facebook.84

B. The Election Integrity Partnership (EIP)

The United States, primarily CISA, also coerced

social media companies into censoring speech about

the 2020 election through the private-sector Election

Integrity Partnership (EIP), led by Stanford

University. Formed in the summer of 2020, EIP was a

coalition of research entities created “in consultation

with CISA and other stakeholders,”85 which “united

government, academia, civil society, and industry,

analyzing across platforms, to address misinformation

in real time.”86 “[F]rom the beginning,” “Stanford and

CISA envisioned the partnership connecting federal

agencies with social media platforms,” and CISA

officials were intimately involved.87

As one senior EIP figure explained, EIP was “set

up at the request of DHS/CISA.”88 Because the four

entities comprising EIP were not government

84 Ex. 19 (e-mail from misinformation@cisecurity.org to Facebook

employees).

85 Election Integrity P’ship, The Long Fuse: Misinformation and

the 2020 Election 2 (2021), https://tinyurl.com/4frucxab

[hereinafter EIP].

86 Id. at 241.

87 Interim EIP Report, supra note 76, at 36; see, e.g., Ex. 20 (email from Kate Starbird to Alex Stamos (July 8, 2020, 10:26

AM)).

88 Interim EIP Report, supra note 76, at 39 (ellipsis and emphasis

omitted).

28

entities,89 the United States sought to use EIP to do

things that the government could not do without

violating the First Amendment––namely, directly

monitoring and censoring speech. By its own account,

EIP filled the “gap” in the government’s ability to

police so-called “misinformation” and “disinformation”

about elections on social media because “no

government agency in the United States has the

explicit mandate to monitor and correct election misand disinformation”90—and because of “[u]nclear legal

authorities including very real 1st amendment

questions.”91

EIP used the Jira Service Desk, an internal

ticketing software to allow approved entities

(government agencies, EI-ISAC, and others) to submit

“misinformation” reports, in the form of a “Jira

ticket.”92 From there, EIP personnel analyzed the

submission and could comment on the ticket, before a

manager would assess whether to forward the ticket

to the relevant social media platform(s).93 EIP’s final

report illustrates this workflow:94

89 Stanford Internet Observatory, the University of Washington’s

Center for an Informed Public, the Atlantic Council’s Digital

Forensics Research Lab, and Graphika.

90 EIP, supra note 85, at v, 2.

91 Interim EIP Report, supra note 76, at 41; see J.A. 222.

92 See generally EIP, supra note 85.

93 Ibid.

94 Id. at 8.

29

EIP was thoroughly intertwined with CISA, which

aided EIP in the process of reporting undesirable

election-related speech to social media platforms.95

Stanford confirmed in a letter to Chairman Jordan

that CISA was directly “tagged” in a number of Jira

tickets “rather than or in addition to” the CISA-funded

EI-ISAC.96 Some of those involved with EIP worked

for CISA, giving them (and CISA) direct access to the

tickets.97 Other documents obtained by the House

Judiciary

Committee

and

Weaponization

Subcommittee confirm CISA’s involvement.98 “As a

consequence, CISA had visibility on what was being

submitted to the EIP”—and “social media platforms

95 Id. at 13.

96 Letter

from John B. Bellinger III to Rep. Jim Jordan,

Chairman, H. Comm. on the Judiciary (July 27, 2023) (on file

with the H. Comm. on the Judiciary).

97 Interim EIP Report, supra note 76, at 44–54.

98 See generally Interim EIP Report, supra note 76; Ex. 21 (e-mail

from Elena Cryst to TikTok employee (Nov. 4, 2020, 7:41 PM));

Ex. 22 (e-mail from Reddit employee to Alex Stamos (Nov. 3,

2020, 12:36 PM)).

30

knew that CISA had knowledge of the EIP’s intake.”99

So even while “CISA did not directly report content to

the EIP, CISA could see what was being reported to

the EIP and simultaneously report the same content

directly to the social media platforms.”100

The FBI, the National Security Agency (NSA), and

the Global Engagement Center (GEC) were also

involved. The GEC is a federal government

interagency organization housed within the State

Department with the stated mission of countering

foreign “propaganda and disinformation efforts.”101

Most notably, the GEC submitted tickets to EIP

through Jira and “was one of the most frequently

tagged organizations in” Jira.102 In addition, before

the 2020 election, EIP briefed the NSA, and sent one

Jira ticket to the FBI.103 Social media platforms could

99 Interim EIP Report, supra note 76, at 47.

100 Id. at 55.

101 U.S. Dep’t of State, About Us—Global Engagement Center,

https://tinyurl.com/43dmawd9 (last visited Jan. 5, 2024); see also

Matt Taibbi (@mtaibbi), Twitter (Mar. 2, 2023, 12:00 PM),

https://tinyurl.com/3pmhu8j6 (“GEC’s ‘Chinese’ list included

multiple Western government accounts and at least three CNN

employees based abroad.”).

102 Interim EIP Report, supra note 76, at 47; see, e.g., Ex. 23 (email from Elena Cryst to Google employee (Nov. 2, 2020, 7:03

PM)).

103 Ex. 24 (Excerpts of Transcribed Interview of Alex Stamos

before the House Committee on the Judiciary and the Select

Subcommittee on the Weaponization of the Federal Government

(June 23, 2023)).

31

see which entity submitted a ticket, including federal

government entities.104

The federally funded EI-ISAC also submitted

tickets.105 CISA even coordinated “an agreement”

between CIS and EIP to avoid double reporting.106 The

two admittedly became “partners,”107 sharing

personnel.108 Information obtained to date during the

House Judiciary Committee and Weaponization

Subcommittee’s investigation confirms that the

government-funded EI-ISAC submitted over 100 Jira

tickets in the lead-up to the 2020 election.109

This close affiliation with the federal government

heightened the coerciveness of EIP’s interactions with

social media platforms. Stanford’s amicus brief in this

Court claims that “EIP’s decisions about what to

escalate to social media platforms were made

completely independently.” Br. 25. It also suggests

“that CISA did not share tips about instances of

misinformation with EIP, did not have general access

to EIP tickets identifying instances of misinformation,

Letter from John B. Bellinger III to the Hon. Jim Jordan,

Chairman, H. Comm. on the Judiciary (July 7, 2023) (on file with

the H. Comm. on the Judiciary).

105 Ex. 24 (Excerpts of Transcribed Interview of Alex Stamos

before the House Committee on the Judiciary and the Select

Subcommittee on the Weaponization of the Federal Government

(June 23, 2023)), at 114–115.

106 Id. at 212:07–12.

107 Id. at 369:01–11.

108 Id. at 168:22–171:16, 183:20–22.

109 Letter from John B. Bellinger III to the Hon. Jim Jordan,

Chairman, H. Comm. on the Judiciary (June 14, 2023) (on file

with the H. Comm. on the Judiciary).

104

32

and did not ‘coordinate’ EIP’s contacts with social

media platforms.” Id. at 24–25. These claims continue

Stanford’s identified pattern of misrepresentations

and deceitful public statements about EIP, including

to congressional investigators.110

Initially, Stanford told Congress—and still

continues to claim on its website—that “EIP did not

make recommendations to the platforms about what

actions they should take.”111 That was and continues

to be provably false: despite Stanford’s best efforts to

avoid a subpoena, the Committee eventually received

dozens of tickets “in which the EIP made a direct

recommendation to platforms on what action should

be taken.”112

Then, Stanford claimed that only the GEC

submitted tickets, and otherwise it “did not use Jira to

receive information from, or share information with,

any federal government agencies or officials.”113 That

too was wrong: besides the overlap between CISA

personnel and EIP, the Committee obtained

documents showing that “CISA personnel were

receiving information from or generated by the Jira

system” and that “CISA personnel referenced the

‘EIP-’ codes when switchboarding.”114

“[M]ore than a month after” the Committee

interviewed a senior Stanford official (Alex Stamos)

110 See Interim EIP Report, supra note 76, at 84–92.

111 Id. at 84.

112 Ibid.; see id. at 86–87.

113 Id. at 88.

114 Id. at 90.

33

involved with EIP, “Stanford’s counsel finally

admitted in a letter to the Committee that CISA was,

in fact, involved with the EIP’s Jira system and that

CISA had been directly ‘tagged’ on a number of

tickets.” Stanford’s counsel claimed that “‘[a]t the time

of Mr. Stamos’s interview, Mr. Stamos was not aware

that CISA or CFITF had been “tagged” in any Jira

tickets.’”115 This assertion was dubious, as tickets that

were shared with CISA “were assigned to Stamos.”116

Given that CISA was intimately involved in EIP’s

creation and operation, CISA was directly tagged in

tickets, CISA personnel had access to the ticket

system, and both CISA and EIP were sharing the

same information with social media companies,

Stanford’s claims before this Court that CISA had no

“general access to EIP tickets” and that EIP’s

communications were “completely independent[]” (Br.

24–25) are hard to take seriously.

EIP onboarded major social media platforms,

gaining privileged access to some of these platforms’

data and the ability to collect such data in real time.117

EIP’s direct recommendations for censorship resulted

in the suppression of disfavored speech about the 2020

election. Thirty-five percent of the URLs that EIP

“shared with Facebook, Instagram, Twitter, TikTok,

and YouTube were either labeled, removed, or softblocked.”118 Every Twitter account holder that EIP

115 Id. at 91–92.

116 Id. at 92.

117 EIP, supra note 85, at 17, 181–82; see Ex. 22 (e-mail from

Reddit employee to Alex Stamos).

118 EIP, supra note 85, at 27.

34

identified as a “Repeat Spreader” of election-related

“disinformation” expressed “conservative or rightwing political views.”119

Content characterized as “disinformation” often

did not refer to factually inaccurate posts. “EIP

analysts were unable to identify a single external

source to support its designation of a particular post

or narrative as ‘mis- or disinformation’ in a majority of

posts it flagged.”120

The United States’ coercive tactics with social

media platforms to quell election-related messages it

finds undesirable are unconstitutional––even when

funneled through a private-sector entity. See Norwood

v. Harrison, 413 U.S. 455, 465 (1973) (“[A] state may

not induce, encourage or promote private persons to

accomplish what it is constitutionally forbidden to

accomplish.” (cleaned up)).

IV. The United States is funding research and

tools to enable censorship at scale.

The Committee and Select Subcommittee have also

uncovered how the National Science Foundation

(NSF) uses taxpayer funds for research into AIpowered censorship and propaganda tools through its

Convergence Accelerator Track F program.121 These

119 Id. at 187–88.

120 Interim EIP Report, supra note 76, at 67.

Staff of H. Comm. on the Jud., Select Subcomm. on the

Weaponization of the Fed. Gov’t of the H. Comm. on the

Judiciary, 118th Cong., The Weaponization of The National

121

35

exchanges provide context for the federal

government’s other interactions with “disinformation”

researchers, such as CISA’s interactions with the

Election Integrity Partnership.

Non-public documents obtained by the Committee

and Select Subcommittee demonstrate that the

federal bureaucrats, “disinformation” researchers,

and non-profits understood that “content moderation”

and combatting so-called misinformation is, in their

words, “censorship.” The Committee and Select

Subcommittee

have

obtained

October

2021

presentation slides with speaker’s notes in which

researchers pitch their AI-powered tool to NSF as a

way for “policy makers at platforms” to “externaliz[e]

the difficult responsibility of censorship.”122

The Committee and the Select Subcommittee have

obtained nonpublic emails and other documents that

reveal an intentional effort by NSF to hide its role in

funding these censorship and propaganda tools. From

legal scholars like Jonathan Turley to conservative

journalists, NSF tracked public criticisms of its work

in funding censorship projects. In fact, NSF went so

far as to develop a media strategy that considered

blacklisting certain American media outlets because

they were scrutinizing NSF’s funding of censorship

and propaganda tools.123

Science Foundation: How NSF Is Funding The Development of

Automated Tools to Censor Online Speech “At Scale” and Trying

to Cover Up Its Actions (Comm. Print Feb. 2024),

http://tinyurl.com/2532hdp5.

122 Id. at 1.

123 Id. at 2.

36

Moreover, NSF provided taxpayer funding to

researchers who, in their proposal to NSF, cited a

study “of two conservative groups” examining the

“online search practices” of Americans who hold “the

Bible or the Constitution” as “sacred” and “distrust[]

journalists and academics.”124 The same study claimed

that “everyday” Americans “often focused on reading a

wide array of primary sources, and performing their

own synthesis,” “unlike expert lateral readers” who

rely on the “expert consensus.”125 These types of

comments unveil the worldview of “disinformation”

researchers, which is paternalistic at best and

contemptuous at worst.

Collectively, these documents begin to shed light

on why so many in the Executive Branch, Big Tech,

and academia have felt entitled to try to limit public

debate on issues of national import. The Executive

Branch’s self-righteous motives notwithstanding,

stifling speech is not only unconstitutional, but it

leads to distorted, poorer policy outcomes because

ideas can no longer be fairly contested on their merits.

CONCLUSION

The Court should affirm.

124 Id. at 25–26.

125 Id. at 26.

37

Respectfully submitted,

GENE P. HAMILTON

REED D. RUBINSTEIN

MICHAEL DING

America First Legal

Foundation

611 Pennsylvania Ave. SE

#231

Washington, DC 20003

(202) 964-3721

gene.hamilton@aflegal.org

CHRISTOPHER E. MILLS

Counsel of Record

Spero Law LLC

557 East Bay Street

#22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

Counsel for Amici Curiae

FEBRUARY 9, 2024

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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