RFK Jr. Motion for Injunction in Biden Case Doesn't Pass Muster, Says DOJ

Plaintiffs Robert F. Kennedy Jr. and Children’s Health Defense “piggyback off the filings in Missouri v. Biden,” said defendants’ opposition (docket 3:23-cv-00381) to Kennedy’s Tuesday motion for preliminary injunction in a freedom of speech case against nearly 70 federal officials in U.S. District Court for Western Louisiana in Monroe.

Kennedy and CHD moved in April to consolidate their March 24 class action against Biden et al. with Missouri v. Biden, saying the defendants and facts are “substantially identical,” with the “only difference” being Kennedy plaintiffs are seeking declaratory and injunctive relief, not damages, said its March memorandum in support of consolidation (see 2304050007). In Missouri, the Missouri and Louisiana attorneys general allege government agencies and officials colluded with Big Tech to censor social media information about the 2016 presidential election and COVID-19 health information. The AGs seek a preliminary injunction against Biden administration defendants barring them from “inducing social-media companies to censor particular contents or to adopt or enforce speech-restrictive content-moderation policies."

U.S. District Judge Terry Doughty deferred a ruling on the motion to consolidate until a resolution is rendered on the pending motion for preliminary injunction in Missouri v. Biden (see 2306060063). Doughty ordered the parties to file a joint status report in response to the complaint within 14 days of the court’s resolution of the plaintiffs’ motion for preliminary injunction in that case.

In the defendants' Tuesday opposition to Kennedy's motion for preliminary injunction, DOJ said plaintiffs fail to establish "any, much less every, element required for the extraordinary remedy of preliminary injunctive relief.” Plaintiffs can’t establish they will suffer irreparable harm without a preliminary injunction, and “submissions in Missouri concerning entirely different plaintiffs do not satisfy these Plaintiffs’ independent burden.”

Plaintiffs’ “unsupported and vague allegations of lost access to information suffered by ‘the American people,’ amount to a generalized and abstract injury that the Supreme Court has repeatedly held cannot confer standing,” said the opposition. Plaintiffs can’t establish a likelihood of success on the merits and don’t present evidence of a cognizable injury in fact, said the filing.

Plaintiffs’ First Amendment theories don’t pass muster, said DOJ. Their theory, which relies on the Missouri plaintiffs’ assertion of state action, fails for the reasons discussed in that case, defendants said, and because Kennedy et al. “have failed to show any state action as it pertains to their own social media content.” Their second theory, that they don’t have to satisfy a state-action test, “is unsupported by authority and incompatible with their claimed injury,” said the opposition.

The “vague and overbroad injunction would impermissibly encroach on the Executive Branch’s prerogative to carry out its functions and speak on matters of public concern,” said the filing, saying plaintiffs’ didn’t establish that an injunction would satisfy the balancing of equities and serve the public interest. Also, the proposed injunction’s undefined terms don’t provide “reasonable notice as to the enjoined conduct,” it said.

Plaintiffs’ reference to “constitutionally protected speech” doesn’t resolve the law enforcement and cybersecurity concerns that make the injunction sought in Missouri overbroad, said DOJ. The FBI, for example, asked platforms to remove personal information about its personnel and federal judges where that information may have been posted in order to encourage violence against those individuals, “even if that information does not rise to the level of a true threat or otherwise violate criminal law,” the filing said. The proposed injunction wouldn't allow this conduct and “would threaten to prevent Executive Branch agencies from performing functions essential to public safety and national security.”