Amicus Curiae Brief — Vivek H. Murthy, Surgeon General, et al., Petitioners v. Missouri, et al.
Supreme Court briefFeb 9, 2024
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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
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.