Jim Jordan, 11 colleagues file amicus brief in Missouri v. Biden

To those who have questioned the usefulness of the “Facebook Files,” Rep. Jim Jordan (R-Ohio) might have given an answer. On Monday evening he and eleven colleagues filed an “amicus” or friend-of-the-court brief in Missouri v. Biden. They seek to oppose the government’s interlocutory appeal and urge the appeals court to affirm the trial court’s injunction. To support their brief, they are sharing all the material Rep. Jordan has released thus far in his “Facebook Files.” They also are releasing additional material covering the federal government’s censorship of discourse about elections.

Jim Jordan takes it to court

Jim Jordan serves as Chairman of the House Judiciary Committee, and its Select Subcommittee on Weaponization of the Federal Government. On July 27, he began releasing his Facebook Files as threads on Platform X (formerly Twitter). Thus far he has released four such threads, which respectively:

1. Set forth Facebook’s relationship with the federal government and how the government conveyed orders they expected Facebook to obey,
2. Described the government’s pressure on Facebook to promote coronavirus vaccines and suppress any talk of their hazards,
3. Showed how the government pressured Facebook to pick winners and losers among various media organs, and most recently:
4. Accused two officers of the Federal Bureau of Investigation (FBI) of lying to his Committee and Subcommittee about how the FBI pressured Facebook (and Twitter, as X was then known) to censor the Hunter Biden Laptop Story.

Chairman Jordan released that last thread two days ago (August 7). That evening, at about 8:19 p.m., America First Legal filed a 185-page brief with the Fifth Circuit Court of Appeals. (Court Listener has a docket page for the appeal here.) That brief contains most of the material Jim Jordan embedded and otherwise described in his Facebook Files threads. It goes further by describing agencies responsible for censorship of election-releated discourse. Many of these agencies’ names should be familiar to Twitter Files readers. Most prominent are the Cybersecurity and Infrastructure Security Agency (CISA) and the Election Integrity Project (EIP), primarily of Stanford University.

Outline of the brief

America First Legal prepared the brief and released their own statement. Additional reportage came from Fox News. One can read the full brief here:

In addition, America First Legal dropped their own thread describing the brief and excerpting its introduction.

In the above thread, America First Legal quoted the anchor post of another thread from December 2022. This thread describes Twitter’s own “back door” it offered to the government, and Facebook’s boasts about its contribution to censorship.

Jim Jordan posted his own links to the Fox News article and America First Legal statement. In addition, Rep. Elise Stefanik (R-N.Y.), Chair of the House Republican Conference, posted this statement:

In addition to Rep. Jordan, the other Members of Congress who signed the brief include Representatives:

• Kelly Armstrong (R-N.D.-At-large),
• Andy Biggs (R-Ariz.-5),
• Dan Bishop (R-N.C.-12),
• Kat Cammack (R-Fla.-3),
• Russell Fry (R-S.C.-7),
• Lance Gooden (R-Texas-5),
• Harriet Hageman (R-Wyo.-At-large),
• Mike Johnson (R-La.-4),
• Thomas Massie (R-Ky.-4),
• Barry Moore (R-Ala.-2), and
• Congresswoman Stefanik, who represents New York’s 21^st District.

Most of the 185-page document consists of twenty-four Exhibits, including Facebook emails and interview excerpts. The interview subjects include Laura Dehmlow (FBI), David Agranovich (Meta/Facebook), Nathaniel Gleicher (Meta/Facebook), and Alex Stamos (Director, Stanford Internet Observatory). That last organization in fact gave rise to the Virality and Election Integrity Projects at Stanford.

America First Legal quoted these statements by its President, Stephen Miller, and Rep. Jordan:

We at America First Legal are deeply honored to represent Chairman Jim Jordan and members of the House Judiciary Committee and the Select Subcommittee on the Weaponization of the Federal Government in filing this incredibly important brief to the Fifth Circuit. The Committee has uncovered a cache of extraordinarily damning files documenting the extent of the government’s collusion with Mark Zuckerberg’s Meta to unlawfully censor speech protected under the First Amendment. This amicus urgently calls the Court’s attention to these new findings and establishes why the court must affirm the decision below and stop the government from any further collusive behavior with Meta and other Big Tech to unconstitutionally silence or censor Americans’ speech and political expression. Freedom and democracy itself depend on the outcome of this case. If Big Government and Big Tech — exemplified by Mark Zuckerberg — can together erase your speech, then by no definition are we a free nation. Stephen Miller

The extensive investigation of the House Judiciary Committee and the Select Subcommittee on the Weaponization of the Federal Government has uncovered smoking gun documents showing how Big Tech and Big Government worked together to stifle free speech online. We know through the Facebook Files that the Biden Administration directed Big Tech companies to censor speech the government disagreed with, and launched a pressure campaign when companies did not comply with these censorship orders quickly enough.

The First Amendment is among our most precious rights as Americans, and we must continue to fight to preserve it. The Judiciary Committee and the Weaponization Subcommittee are dedicated to that task. We appreciate the assistance of the America First Legal Foundation and Spero Law LLC who are filing today’s amicus brief on behalf of eleven Members. Jim Jordan

Arguments that Jim Jordan and colleagues made

The arguments that Jim Jordan and colleagues make in their brief all point to government coercion of speech. This coercion covers three subject areas: COVID, “Biden Family influence peddling” (including the infamous Hunter Biden Laptop), and elections.

In their Introduction – and for the first time – Jim Jordan and his colleagues address social media platforms being willing participants.

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.

All this is consistent with the narratives that these Representatives, and plaintiffs’ counsel in Missouri v. Biden, have always advanced. That is: the government set out to make private entities do things. These entities might have done some of these things anyway – but not all. The brief, relying on Facebook Files material, shows that Facebook staff often protested the orders they got. Twitter Files threads show the same kinds of occasional protests.

How did the government apply pressure on social media companies? In three main ways: private coaching that went beyond coaching, public shaming (“They’re killing people,” etc.), and threatening to remove their Section 230 immunity. (Section 230 of the Communications Decency Act generally protects “publishers” from liability for good-faith decisions not to publish pornography or other “indecent” content.)

Except in the elections context, much of the brief repeats the text of the Facebook Files threads. The exhibits, moreover, contain most of the embedded images of emails and other documents in those threads. Regarding elections, the brief makes arguments similar to the texts of several Twitter Files threads mentioning the Election Integrity Project.

Briefs from other friends of the court

Jim Jordan’s brief was not the only friend-of-the-court brief the Fifth Circuit received on Monday, and indeed was the last. The plaintiff-appellees, of course, filed their brief last Friday (August 4). Other friend-of-the-court briefs in support of their position came from:

• The American Center for Law and Justice, addressing issues of standing and how the government turned platforms into State actors,
• Dr. Simone Gold and America’s Frontline Doctors, attacking the government’s censorship regime as going beyond the scope of its authority,
• The Buckeye Institute, reviving an old term – jawboning – in order to condemn it and its application today,
• The Attorneys General of Montana, South Carolina, Iowa, Kansas, Nebraska, Idaho and Utah, supporting further the States’ standing,
• Alliance Defending Freedom, addressing not only government orchestration of censorship but also social media platforms as willing accomplices,
• Florida’s Attorney General, setting forth Florida’s own argument for State standing,
• The Center for American Liberty, concentrating on government encouraging censorship by private actors,
• America’s Future and 16 other liberty-defending organizations, all challenging the government’s view of its powers,
• Angela Redding, resident of New Jersey, who had her own tale of censorship to tell, and
• Children’s Health Defense (CHD), highlighting a key case on point about private entities as State actors. Skinner v. Railway Labor Executives’ Association, 489 U.S. 60-2 (1989).

About the Skinner case

The Skinner case treated private railroad companies requiring breath and urine tests of train crews involved in train wrecks. Samuel K. Skinner served as Secretary of Transportation in the first two years of the Bush (Senior) administration. The Supreme Court held, 7-2, that those breath and urine tests were reasonable. But: the Court also held that the Fourth Amendment did apply in this case, even though the collection of those specimens came under railroad work rules, not under federal law or any regulation directly applicable to any train crew or its members. Those tests became reasonable only in the context of a compelling interest of the government in preventing train wrecks.

Skinner’s regulations immunized railroad companies from liability for requiring the tests, and expressed a strong preference that railroads require them. Similarly, Section 230 immunizes social-media platforms from suit by accountholders when platforms take down their material. Furthermore, the government has been expressing “strong preferences” for censorship. So CHD says the same combination of circumstances applies in the Skinner case and the Missouri case. Worse still, the government is “sharing in the fruits” of censorship, by suppressing information that makes people hesitate to take COVID vaccines, for example. Finally, CHD quotes the case of Norwood v. Harrison, 413 U.S. 455 (1973).

[It is] axiomatic that [the] state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.

Analysis

The appeal in the Missouri case goes to oral argument tomorrow afternoon before the Fifth Circuit Court of Appeals. In addition to briefs by the parties, this case has seen eleven friend-of-the-court briefs against the government’s appeal, and four in support. (Court Listener originally misplaced a brief by Stanford University and Stanford Internet Observatory figures Renee di Resta and Alex Stamos. But after CNAV alerted Court Listener to the error, they corrected it. One can read their brief here, noting that these un-worthies declare, totally un-ironically, that the injunction abridges their rights. They also deny the harms they have done. Sadly for them, the facts speak for themselves, and contradict their brief.)

This case appears well-briefed, and CNAV expects the Fifth Circuit to find for the appellees and affirm the District Court. If it does, the injunction by Judge Terry A. Doughty will go back into effect.

But CNAV can well understand the objection that operators of other, less “dominant,” social-media platforms might raise. This particularly applies to Gab Social, which built an entire infrastructure for itself. As they point out, they routinely tell governments to “go pound sand.” So they have no sympathy for “dominant social-media platforms,” which they seem to regard as willing accomplices.

Nevertheless, the Fifth Circuit promises to have an interesting argument session. The involvement of prominent Members of Congress will make it more interesting still.