[CLIP] Mark Chenoweth on Suing Federal Agencies and Ensuring the Separation of Powers

So the case, for those who aren't familiar, is a case where the Attorney General of Missouri and the Attorney General of Louisiana are representing those states in the lawsuit. And the New Civil Liberties Alliance is representing four private plaintiffs in the same lawsuit. And we're all suing the administration, including Anthony Fauci and the Surgeon General Vivek Murthy and several other administration officials, saying that those officials ordered Twitter and Facebook and other social media companies to censor certain things and even take people off of those platforms entirely, and that because that was action of the government and not just action of those private individuals or private companies, the First Amendment is implicated and that conduct is illegal. So that's the claim in the case. We're representing Jay Bhattacharya and Martin Koldorf and Aaron Cariotti. And then there's a small organization in Louisiana that's a health care organization as well. And Jill Hines is the head of that organization, so she's the other plaintiff that we're representing there. What the discovery has shown in that case, as you were alluding to, Jan, is that there were quite extensive communications between the White House and many other—so Rob Flaherty at the White House is the one who has been most often appearing in a lot of these emails. And not only was there a lot of communication, but a lot of it was quite explicit. And even though now that they're under suit, the government wants to pretend that these were suggestions or what have you, if you read these emails—and some of them are public and others will become public over the course of the lawsuit—this doesn't read like a friendly suggestion from your neighborhood government. These read very much like, why the hell haven't you acted on what I told you to do yet, sorts of kinds of instructions that I think any reasonable juror would look at that and say, this is coercive on the part of the government. This is ordering a company to do something, not suggesting something that they might want to do. The other thing that's come out is that there were private channels created, some at the behest of the government, maybe others weren't, but in any event, these private channels of communication, special portals were created where certain government agencies, including the FBI, could directly send information to these companies saying, check out this tweet, check out that tweet, check out this post, take down that post. The third thing that's come out now is that some of these communications took place on a platform called Signal, which to the extent your audience is familiar with this, it's a little bit like Snapchat in the sense that the communications disappear very quickly. Or they can be configured to do so. It doesn't have to. Yeah, yeah, yeah. That's right. Yeah. And so there's a couple of problems with that. One is, under the National Archives and Records Act, typically government actions are supposed to be preserved and there should be a record of any of those communications. The other thing is, if we don't have a record of this, then there could be a spoliation of evidence issue. Now, I suppose the government would say, well, we had no reason to believe that we were going to be sued over this, but a judge might not see it the same way. What is the spoliation of evidence again? So if you know that you're going to be sued and you have a bunch of evidence in your possession that shows that you're guilty of what they're going to sue you over and you destroy that, you burn the tapes or you use bleach bit on a server, you might be accused of spoliation of evidence. You might be guilty of that. Okay. I understand. But in this case, they'd be doing it ahead of time, just planning to make sure that nothing was available. Right. Right. Even if it's not spoliation, you might have a judge who would say, look, the fact that they deliberately set this up not to create an evidentiary trail of what they were saying or doing, you can use that fact as a reason to infer that the things that they were saying here might not have been fully lawful. Fascinating. The Twitter files releases, subsequent to the beginning of your lawsuit, have really been also, I don't know if vindication is the right word, but they've added to the evidence. Presumably, you actually got from the Twitter files more evidence that you can use. Is that right? That's absolutely right. The Twitter files have been immensely helpful. There's lots of information in there that confirms what we were already able to see from the discovery that we had obtained, which is that these were very extensive communications back and forth. Something that I believe came out of the Twitter files that we didn't know, if I remember correctly, in terms of the sequencing of information here, is that the FBI was actually paying these companies for some of what they were doing. Now, there's a federal statute that allows the government to pay for certain kinds of information. If the government is producing a search warrant, it's going to be very costly for a company to comply with that search warrant. Then sometimes the government will subsidize the cost of that. There certainly isn't a statute that subsidizes companies for violating the First Amendment rights of people at the government's behest. To the extent that the payments were being made for this unlawful conduct that was being done, that is an additional level of illegality because they were abusing this statute that would allow for paying companies in this other circumstance. Something that's really interesting also is that with the Twitter files, there was a huge focus on Twitter as just this one company, whereas when you add the discovery information that you found and you've published and add the Twitter file, you see that it's not just one company, it's many companies. It's a pattern. Absolutely. It's a trend. It's a pattern across multiple companies. Even more disturbing, Jan, it's a pattern. It's not just Rob Flaherty at the White House. It's not just Elvis Chan at the FBI. It's not just some of these nameless and faceless bureaucrats in other parts of the administration. There seems to have been a concerted effort across different offices in the administration. I don't know if we know enough yet to be able to say, okay, you guys take care of Facebook and you take care of Twitter and you take care of LinkedIn or what have you, but there definitely seems to be a level of communication within the government about how to achieve this goal of censoring people that I think Americans are going to find disturbing and that fortunately, the First Amendment already protects them from, but it takes a lawsuit like the one that NCLA is bringing to get an injunction against the government to stop it from doing the illegal conduct that it's been engaged in. I'm just thinking about juries. I attended a trial where John Durham was presenting evidence here in the D.C. court. I felt the case was very strong, but my guess is that the jury was just sympathetic to the actions of the plaintiff. I can understand why, too, based on the particular media reality that we're in. I kind of get it. Can we get juries in this day and age to actually consider the realities of law? Absolutely. Can we get judges to do it as well, because jury nullification is a separate question. It doesn't come up as often in some of the kinds of cases that we're involved with at the New Civil Liberties Alliance because you most often have juries in the criminal context. Not to say we don't have civil juries—obviously, you do—but a lot of the kinds of cases that we bring against the government are decided at a summary judgment phase by the judge. They're legal questions rather than factual questions, and juries are really there for the factual questions and deciding the factual record. But of course this applies, as you just said, equally to judges. Absolutely. Judges bring their priors to these things as well, and some of them are better at setting aside their biases than others. There was an expression, Trump law. What do people mean when they mean Trump law? They mean, are the judges deciding this question the same way that they would have if a different president had done the exact same conduct? If the answer is no, they're not, then you've come up with a special rule that applies only to this president that you wouldn't apply elsewhere. That's not the rule of law. That's making decisions based on personalities and people rather than on what the statute and the law and the words say. That's not something that any judge should do. This is an actual term? This is a term that people throw around. I don't know that anyone's done the definitive article on Trump law, but it wouldn't surprise there may be a law review article out there. Law review articles are not widely read typically, but there may be one out there that tries to quantify this effect because it's certainly something folks are talking about in the profession. As we continue here, let's jump to this third case, which is happening at the state level now. AB 2098 was a law passed by the California legislature last year. It was signed by Governor Newsom. It went into effect on January 1st of 2023. What the law said is that if you're a doctor or either an MD or a DO, so you're either governed by the Medical Board of California or the Osteopathic Board of California, if you say something to your patients that is inconsistent with the quote unquote contemporary scientific consensus about COVID, then complaints can be made to the respective boards of medicine and your medical license is in jeopardy. They can take away your license if you say these things. And I think this was something that frightened a lot of doctors. Unfortunately the Medical Board of California was complicit in this legislation being passed.