Executive
Missouri v. Biden moves forward
The trial judge in the case of Missouri v. Biden largely denied a motion to dismiss, ensuring the case will move forward.
The case of Missouri v. Biden, arguably the most important civil liberties case in modern memory, will move forward. Judge Terry Doughty yesterday handed down a ruling mostly denying a motion to dismiss. The judge cut out only one named defendant (President Biden) but left the rest of the case intact. Now pre-trial discovery can continue.
Background of Missouri v. Biden
The plaintiffs in the case include the States of Missouri and Louisiana, plus five individuals:
- Dr. Jayanta Bhattacharya,
- Jill Hines,
- Jim Hoft,
- Dr. Aaron Kheriaty, and
- Dr. Martin Kulldorff.
The defendants read like a Who’s Who in Government. They start with the President (or they did; more on that below). The suit also charges Press Secretary Karine Jean-Pierre, the Surgeon General, and the infamous Dr. Anthony S. Fauci. After that come a dizzying variety of agencies and their heads – for a total of 67 defendants. This link has the Second Amended Complaint, all 164 pages of it.
The plaintiffs filed their first Complaint on August 2, 2022, and their Second Amended Complaint on October 6, 2022. On November 1, 2022 (a week before Midterms), The Intercept published its “Thought Cops” piece. That piece confirmed for the first time that social media, including Twitter before Elon Musk bought it, were State actors.
From the beginning, the government has tried to argue that private actors are not and never can be State actors. Therefore no court could hold the government liable for anything they did.
But Judge Terry Doughty, in whose court the case rests, is having none of that. Yesterday, in seventy-seven pages, he said so.
The New Civil Liberties Alliance maintains this landing page for Missouri v. Biden with links to all available documents.
Several threads
Tracy Beanz, Editor-in-chief at Uncover DC, dropped a lengthy thread on Missouri v. Biden on December 16, 2022. It has links to articles at Uncover DC, and some deposition transcripts in the case.
Then beginning in January 2023 Ms. Beanz released several more threads and embeds of filings:
Then last week (March 15) came this ruling, denying a motion to strike the Statement of Fact from the Second Amended Complaint.
That memorandum also gave the defense twenty days to respond, and set a hearing date for May 12, 2023.
All parties were still waiting on a ruling on a motion to dismiss the case outright. That ruling came down yesterday. Jenin Younes, Attorney for Jill Hines and for the three doctors, dropped this thread linking to and explaining the ruling:
She initially had a tweet directly after the anchor tweet, saying this:
The Court finds that the Complaint alleges significant encouragement and coercion that converts the otherwise private conduct of censorship on social media platforms into state action, and is unpersuaded by Defendants’ arguments to the contrary.
But subsequently she deleted it, for reasons best known to herself.
Reaction to Attorney Younes’ thread was almost entirely congratulatory. A few users wanted some explanations of concepts they didn’t understand. Why a court cannot enjoin a sitting President, for example.
Analysis: the ruling…
Here CNAV offers its own analysis of the ruling, in addition to that of Attorney Younes. The defense tried to throw the case out on three main grounds. First they denied that the Plaintiffs had Article III standing. The judge said yes, they had. The States and individuals had alleged injuries-in-fact, traced the injury to the defendants, and suggested a remedy within the court’s power to grant. Furthermore, the court found that the States had a type of standing called parens patriae (“parents of their country”). That means any injury to the “sovereign interests” of a State is an injury to the State itself.
Next the defendants tried to claim federal sovereign immunity. No go, said the judge. Sovereign immunity cannot excuse violations of the First Amendment, exceeding one’s lawful authority (i.e., acting ultra vires, or “beyond one’s power”), nor violations of the Administrative Procedures Act.
Finally, the defendants argued that all the actions taken against plaintiffs were by the private social media companies, acting privately. No, said the judge; the plaintiffs alleged that, while the companies are private, their acts are not. Not when the government orders them so to act.
The only success the defense had was to dismiss all claims and prayers for injunctive relief against the President. Courts do not enjoin Presidents with regard to their official acts. But declaratory judgments might still be valid.
… and the Missouri v. Biden case itself
The case of Missouri v. Biden, now that it can move forward, will set boundaries where this administration has clearly crossed them. But that doesn’t apply only to this President. Several of the censorship orders came earlier, in time to skew public opinion about then-President Trump and then-candidate Biden. The flip side of a court not directly enjoining a President is that the injunctions do not “go away” after that President leaves office. Nor do they have any limit on their force or effect by reason of whether a given agency, agent, or supervisor acted before, or after, any particular President entered office. Which makes Dr. Fauci, for example, liable for all his acts, under Biden, Trump, and perhaps even Obama.
More to the point, Missouri v. Biden will put paid to the notion “this is a private company, so you have no standing.” Thus far a court has now said those of us who had our voices stilled, do have standing to complain. That same court has also set a standard for determining when private acts become State acts. As Clarence Thomas has already said, private acts become State acts when the State threatens, cajoles, pleads, orders, or otherwise induces those acts.
All eyes will turn to the court again, when the case comes to a hearing for a preliminary injunction.
Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.
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