Today, District Court Judge Terry Doughty granted the National Civil Liberties Alliance’s (NCLA’s) requests for depositions in the censorship lawsuit, State of Missouri ex rel. Schmitt, et al. v. Biden, et al. Earlier interrogatories in this lawsuit identified 45 federal officials from the Department of Homeland Security, the Cybersecurity and Infrastructure Security Agency, the CDC, Dr. Fauci’s NIAID, the Office of the Surgeon General, and others who communicated with social media companies about “misinformation” and censorship.
Now, the plaintiffs will have the opportunity to depose a total of eight Biden officials. The following officials will be required to give depositions: NIAID Director and White House Chief Medical Advisor Dr. Anthony Fauci; former White House Press Secretary Jennifer Psaki; FBI Supervisory Special Agent Elvis Chan; Surgeon General Vivek Murthy; CDC Chief of the Digital Media Branch Carol Crawford; and Acting Coordinator of the State Department’s Global Engagement Center Daniel Kimmage. The plaintiffs will need to select one of the individuals from the following pairs to depose: Deputy Assistant to the President and Director of White House Digital Strategy Rob Flaherty OR former White House Senior COVID-19 Advisory Andrew Slavitt; and CISA Director Jen Easterly OR CISA official Lauren Protentis.
Jenin Younes, Litigation Counsel at NCLA, and the legal team based the deposition requests on the information obtained in the interrogatories. The plaintiffs believe those named have specific individual details by virtue of their position. For example, CDC Chief of the Digital Media Branch Carol Crawford leads the agency’s digital media activities. Interrogatory responses revealed Crawford was holding regular “Be On the Lookout” meetings with staff from the social media companies. In these meetings, attendees reviewed specific social media posts containing “misinformation.”
In the case of Dr. Anthony Fauci, the plaintiffs seek specific underlying information regarding some communications that are already public. Younes cited the email exchange between Fauci and former NIH Director Dr. Francis Collins discussing a takedown of the authors of the Great Barrington Declaration and NCLA clients Drs. Jayanta Bhattacharya and Martin Kulldorff. Fauci also did not complete or sign his own interrogatory as is customary.
Judge Doughty noted this breach of custom in his ruling (emphasis added): “Lastly, Plaintiffs argue that Dr. Fauci’s credibility has been in question on matters related to supposed COVID-19 ‘misinformation’ since 2020. Specifically, Plaintiffs state that Dr. Fauci has made public statements on the efficacy of masks, the percentage of the population needed for herd immunity, NIAID’s funding of ‘gain-of-function’ virus research in Wuhan, the lab-leak theory, and more. Plaintiffs urge that his comments on these important issues are relevant to the matter at hand and are further reasons why Dr. Fauci should be deposed. Plaintiffs assert that they should not be required to simply accept Dr. Fauci’s ‘self-serving blanket denials’ that were issued from someone other than himself at face value. The Court agrees.”
According to Younes, the lawsuit seeks declaratory and injunctive relief. None of the plaintiffs are seeking a financial award. “The plaintiffs want the court to declare it is a First Amendment violation for the government to be involved in the social media companies’ viewpoint discrimination.” While the case centers on censorship of information related to COVID-19, such a declaration could have broad-reaching implications for censorship of information on other issues in the public square.
Based on continued disclosures in discovery, it has become clear that the federal censorship enterprise is enormous and far-reaching. The plaintiffs’ Second Amended Complaint names 67 defendants, spanning at least eleven federal agencies and sub-agencies. The decision orders that the depositions get completed in the next 30 days. The defendants can appeal to the Fifth Circuit Court, which may cause a delay.
Recently, the Fifth Circuit has ruled on some meaningful cases. It is the court that struck down President Biden’s vaccine mandate. In NetChoice v. Paxton, it also stayed an injunction against a Texas law that prohibits social media companies with more than 50 million users from engaging in viewpoint censorship by removing it or hiding it. The law also restricts email providers from preventing email transmission under most circumstances. It makes exceptions for content that is obscene, illegal, or that contains malicious code. And it requires covered platforms to provide detailed reports about their content moderation policies.
“For the first time, Dr. Fauci and seven other federal officials responsible for running an unlawful censorship enterprise will have to answer questions under oath about the nature and extent of their communications with tech companies,” Younes declared. “We look forward to learning more about just how far these government actors went in ensuring that Americans heard only one perspective about Covid-19: the government’s.”
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