Thread by @AkivaMCohen

Hey, #LitigationDisasterTourists - I did say I'd start looking at the performative lolsuit Missouri and Louisiana filed against Joe Biden, so let's get into it.

A couple of things to notice, right off the bat.

1) They filed it in the Western District of Louisiana, Monroe Division. Normally, you'd expect the Louisiana attorney general to file cases on behalf of the state in the Middle District of Louisiana, which covers Baton Rouge

After all, that's the state capitol and where AG Jeff Landry has his office.

So why the Western District, and Monroe Division?

Because it has only 1 active judge, a Trump appointee.

You may recognize Judge Doughty as the judge who blocked the Biden administration's healthcare vaccine mandate and oil leasing ban.

This is judge-shopping, plain and simple.

They've sued a whole bunch of Executive branch officials and agencies in their official capacity (and only their official capacities), and wildly enough inserted "so-called" for their description of the Disinformation Governance Board (insanely unprofessional)

Since they're suing this disparate crew - HHS and Homeland security and the press secretary?? - in their official capacities, let's jump to the requested relief and see what they want these people to do

BTW, you have no idea how happy I was to find the Jessie "I'm so excited!" gif from Saved By the Bell's Very Special Episode (TM). It's perfect

O ....K?

So they're asking for declaratory judgments that whatever conduct they're complaining about violates the 1st Amendment, the Administrative Procedure Act, and exceeds the defendants' authority, and an injunction against its repetition. Which ... ok. Except ...

1) And this is a side note, but they're also asking for a declaration that the conduct (whatever it is) violates various state constitutions, and ... hey, guys? Federal officials don't have to give a fuck about that

I mean, I think it would be nice if executive branch officials followed the NY state constitution as well as the Federal constitution, to the extent NY gives me more rights than the federal constitution does, but they absolutely don't have to.

State constitutions have exactly zero power over the Federal government (that whole supremacy clause thing). Federal officials can walk down the street in your home state blatantly violating your state constitution every other step, and you know what the courts can do about it?

2) What in the world does any of this have to do with Jen Psaki, in her official capacity as Press Secretary? Do you know what she does in her official capacity? Getting information out to the press.

That's it.

The press secretary has no policy making role (I mean, they can weigh in on policy decisions, of course, but that's advice, not making policy themselves) and no enforcement role. What exactly are these galaxy brains asking the Court to enjoin her from doing?

No, seriously. For everyone else, I'm going to withhold judgment until I read the complaint (though I don't exactly have high hopes). But this one, standing alone, is a flashing red siren announcing that these idiots have all of the competence of Ty Beard on a bender.

Alright, it's near 1am, tomorrow's mother's day, and this is an 83 page monstrosity, so let's stop on that high note and pick this up at some point tomorrow

Well, this doesn't start out auspiciously. Looks like we have another dumb "the government is coercing private actors into suppressing speech" suit of the variety that Berenson, Trump, and basically every right-wing grifter wannabe has lost recently

Oh, hey, who wants warmed over leftovers for breakfast? If it matters, the food was already spoiled the first time it was served.

I'm going to make a prediction

Despite being 83 pages long, this campaign flyer masquerading as a lawsuit isn't going to allege a single fact that would (or should) change the outcome of the prior suits: nothing more on-point on whether the government is coercing Twitter or FB or whatever, nothing.

They're really just hoping that the right wing judge down in Monroe Louisiana will ignore all of the directly on-point precedent from everywhere else.

While I wish I could tell you that's definitively not going to happen, it's vanishingly unlikely.

I'm sorry, what?

No, seriously - which "events giving rise to the claim" occurred in Monroe Louisiana? I'm really looking forward to seeing this one.

Oh, no. Already?

OK, this is not a thing. No, states don't have a protectible interest in "free flow of information on social media" and they don't have an interest in defending their citizens' free speech rights; this is a basic standing issue. What's the injury to your state, guys?

Let's talk about that Alfred L. Snapp case. There, Puerto Rico sued on behalf of a large number of Puerto Rican citizens who had been discriminated against in violation of various statutes barring companies from hiring foreign workers when US workers were available to fill jobs

Puerto Rico's standing was questioned, so SCOTUS did a deep dive on when states can sue to protect their citizens. Basically, it requires an injury to a "quasi-sovereign interest" of the state's. Which, of course, SCOTUS had a hard time defining. But here's what they say

Quasi-sovereign interests are interests in the "well-being" of the state's citizens. But NOT IN THE ABSTRACT. So, things like abatement of public nuisances, or access to products produced in other states, that qualifies

SCOTUS summed it up this way: States have this type of standing where they are:

1) Protecting the economic or physical well-being of a large portion of their population; or
2) their population is being discriminatorily denied the benefits of being in the US

Which of those two categories applies here?

There's no alleged economic or health injury. And Missouri and Louisiana aren't claiming that the defendants are specifically discriminating against Missourians and Louisianians. Just that there's some broad policy that impacts citizens generally, which they dislike.

Or, to put it another way, if these states have standing to sue here, they have standing to sue for *any* federal policy that has any impact, ever.

That's not going to fly, guys.

OK, gonna take a break here. We'll be back

Jumping past the list of Defendants we get to the substantive claims, which start with a few paragraphs about how generally important a right freedom of speech is, that government can't censor, and that just labeling speech false doesn't change that.

Yes. We know.

I mean, I read it. I'm just not going to subject you folks to it, because there's no reason to

I will say this: none of this stuff belongs in a complaint. I mentioned this in a prior reply, but it's worth repeating in the main thread: it's a truism in the lolsuit canon that lolsuit complaints spend a ton of time making arguments and not enough time pleading facts

The basic job of a complaint is to plead very specific facts (for the defendants to admit or deny) that you claim give you a right to relief.

The ball was mine.
John took the ball w/o permission
Thus, the court must order him to return it

It's not the place for legal citations, disquisitions on the history of American jurisprudence, etc. Lawyers know this.

Lolyers, on the other hand, file lawsuits that they (should) know are meritless and primarily intend as press releases for their political causes

So instead of just pleading facts, they basically pre-brief their expected response to a motion to dismiss.

Typically (and this complaint is no exception) they do it badly.

Now look, that's not to say that there should *never* be legal argument in a complaint; the one excuse for it is to warn off a defendant from making a motion to dismiss by previewing a theory of the case they might not have caught from a bare recitation of the facts, where you're

being particularly creative in your arguments. I think I may have done that once or twice in my career. But even there, it's, like ... one or two paragraphs alleging the general legal principle you say applies, and then back to the facts.

These embarrassments to the legal profession (and, really, bipedal hominids capable of rational thought more generally) spent from paragraphs 28-46 on basic background principles of 1A law.

But at least they're done, right?

Paragraph 47 continues citing law. But I'm going to show this part to you, because at least they've FINALLY gotten to the law relevant to their theory of the case: that the government can't accomplish a constitutionally forbidden act by compelling a private party to do it for em

Which ... yes! This is true. But as case after case has held, government officials saying "man, I really wish private company X would do something about this problem" doesn't qualify. Nor does "we may want to look at changing the regulations if they don't"

Those cases they cite in that last paragraph, the ones where government action was found? That's where a prosecutor or other regulatory agency told a private party "do this or we're going to prosecute you for violating the law"

That's very different

In fact, a court just explained all of this ... AGAIN ... like, yesterday

https://twitter.com/disclosetv/status/1522715384985567232

Next we get yet more paragraphs about how social media is so tremendously important to speech these days - size of social media platforms, how many people use them, all sorts of facts that don't make the slightest bit of difference because Twitter is still not the government guys

This, however, is such a special kind of stupid it's worth calling out on its own.

Did you know that we live in a society?

Next we have a series of paragraphs about the Hunter Biden laptop story which - reminder - happened while Trump was president.

And, you know, that's actually kind of important, because if the theory is that private entities are now censoring things because of executive branch pressure from President Biden and his team, an example of those private entities choosing to engage in that conduct in 2020 ....

Oh, holy fuck, now they're on to "censoring speech about the lab leak origin of covid in Feb 2020" - guys, have you considered that time flows forward in a generally linear fashion?

I'm not going to amplify these idiotic loons, but people, even if all of this was true, "government official lied about whether your conspiracy theory was correct" ISN'T a first amendment violation.

Neither is "and he asked FB & Twitter to delete that conspiracy theory"

Again, this is not evidence of the government coercing or coopting a private actor.

"We're not going to allow speech the government disfavors" is a TERRIBLE policy for a private entity to adopt, and also one it has every legal right to adopt. Welcome to the constitution

Seriously, for people who tend to campaign on their support for freedom and the constitution, Republican politicians like these sure seem to hate the fuck out of it in practice.

And to hit the conspiracy trifecta we're on to mask-effectiveness and mandates. I'm not going to waste your time, because this is a primal political scream in desperate search of a viable legal theory, and nothing more.

And next we get "speech about mail in voting and the election", because of course we do.

OK, finally - ONE HUNDRED AND TWO FUCKING PARAGRAPHS IN - we get to some allegations about what they think these defendants have done that warrants court action

Oh, good. It's A CONSPIRACY! (seriously, they're alleging "overt acts" which means - assuming any sort of baseline competence, which, granted, is a lot to assume with these clowns - their theory is that the defendants got together and said "lets suppress some speech")

OK, pardon me while I jump to the causes of action, because now I have to see

No. Of course not. I apologize for my insanely stupid assumption. Why would this be any more relevant to the actual claims than the prior 101 paragraphs?

Just a standard "You violated the first amendment" claim, followed by the incredibly lolable "exceeded statutory authority" and "administrative procedure act" claims. No conspiracy count at all.

So, what's the actual claim? The standard freezepeach lolclaims, of course.

Start with "enacting section 230 means that every time a black church kicks a KKK member off of its message board and deletes his racist garbage, that's the government violating free speech"

Of course, we have the de rigueur paragraph claiming that ACKSHUALLY, courts have gotten Section 230 wrong for 20 plus years and really, websites can't have a viewpoint

Because, you see, @AGEricSchmitt and @AGJeffLandry don't want FB or Twitter to be able to ban people who advocate for lowering the age of consent to 9. That's content these two Republicans want social media to be FORCED to carry, whether they want to or not.

Tweet threads about how attractive a particular user finds 6 year olds and why they should be allowed to sleep with them? @AGEricSchmitt & @AGJeffLandry fully support preventing Twitter from censoring that.

Next we have "social media companies don't want to be regulated any more than they are, and politicians threaten to regulate them"

Again, "we'll try to legislate in ways you don't like" is not enough to make private conduct into government action

The complaint then attempts to tie things the Biden admin has said to things various politicians have been saying for years, which, well, "they've been threatening this for years, but not doing anything about it" doesn't make your case stronger, you know?

Through paragraph 131, we're still talking about stuff Biden said before taking office, which ... nobody cares, guys. You can't sue the Biden admin in his official capacity for things he said on campaign

Yellow highlight: Sorry, this is wholly conclusory. You're going to need to allege some factual content showing that "collusion"

Red highlight: Hahahahahaha. And also, you spent whole pages above pointing out that the government can't censor untrue speech either, so who cares?

Next we have the "information and belief" claims that Dr. Fauci somehow coerced Facebook into censoring. It's like these morons are incapable of grasping that private companies are allowed to decide to listen to requests from the government

And then on to the "the Press Secretary said the administration was unhappy with what companies were allowing on their platforms" - note, this is the EXACT nonsense that got yeeted into the sun on the Trump and Berenson claims

How about the Surgeon General? Apparently he's been named as a defendant because the government criticizing things other people say is unconstitutional, now

"We would like companies to do X" has never been, and will never be, government coercion or joint action.

Anyway, the next few pages are a rehash of the standard "they said stuff, that's government action" section of the Berenson complaint. It's dumb, and meritless, and these AGs know it.

Oh, there 100% was a RICO claim included in an earlier version of this draft - that's the only reason you'd italicize "enterprise" and it explains the "overt act" language from earlier - that was deleted.

Which is really interesting to me, because that both indicates that even these galactic fuckups can recognize that there's a line *somewhere* and also that this gigantic pile of horseshit was actually the result of their exercise of discretion and restraint.

OK, family arrived, break time

Here's a great example of the core of this lolplaint: Social media companies are making content decisions we dislike, under federal "pressure"

Yeah. They get to do that.

Youtube is 100% free to engage in viewpoint focused censorship.

They don't need to carry video from David Duke explaining that Jews are the world's misfortune. They don't need to carry video from "MAP advocates" explaining that pedophilia is actually good for children

We then move on to paragraphs alleging that the Federal Government isn't allowed to call things disinformation and push back on it, for reasons unknown

The government has the same right to flag content for FB & Twitter that anyone else does, as long as it doesn't coerce action

Always nice to include in your "Twitter is just doing whatever the federal government wants" claim a paragraph of the federal government complaining that Twitter isn't actually doing what the federal government wants

I mean, here's that tweet, in full context - why would you ever plead this into your complaint?? It's self-sabotage

Next we have more paragraphs on "Psaki says the WH is concerned and social media companies need to be held accountable" which - and I think I've mentioned this once or twice - means exactly fuck-all in the "this private company is really engaged in state action" context

For fuck's sake, guys, if you want to allege "social media companies are only doing this out of fear of retaliation from the President" then maybe don't plead that they were doing exactly the same thing while Trump was president?

I swear, @AGJeffLandry & @AGEricSchmitt have all the strategic sense of Custer at Little Bighorn.

Or, well, Hillary in Michigan.

Oh, come the fuck on, guys. This is 1L stuff, you know better than this

Really? Really really?

Live look at @AGJeffLandry & @AGEricSchmitt as they reviewed the draft

Folks, "prior restraint" means a government order that prevents you from publishing something in the first instance, like a court order to a newspaper enjoining it from printing a story.

It is NOT consequences after you publish, like having a tweet deleted or an account banned

OK, work calls and we've hit the cause of action. Be back in a bit

Count 1 starts off fairly normally, except for these idiots' apparent continued belief that their state constitutions can in some way constrain the behavior of federal officials and the completely useless citation in paragraph 242.

But then ... oh, but then ...

I mean look at this shit. What the hell are you doing, guys? This doesn't matter. Like, at all.

I'm going to explain this to @AGJeffLandry & @AGEricSchmitt like they're 15, since they've chosen to act like it - and also just cribbed pieces of other since-dismissed 1A lolsuits without, apparently, spending even a millisecond thinking about how it fit in with THEIR case

If you're suing Twitter on a lolclaim that they're bound by the 1st Amendment, it would be super important if you could convince a court that Twitter is, will-they-nil-they, somehow a public forum like public access TV. Then Twitter would be bound by the 1A

But you geniuses are suing the fucking executive branch of the Federal Government. They're bound by the 1st Amendment whether Twitter is "the public square" or not. Joe Biden can't issue an order directing my teenager to delete even an Amino DM on pain of prosecution.

Public forum, private forum, huge audience, audience of 1 ... when it comes to the feds abridging freedom of speech or of the press, it just doesn't matter.

But it gets worse, because of course it does.

Again, you're suing the federal government, not private companies. It doesn't matter in the slightest whether these companies are "akin to common carriers" (LOL they're not, they specifically refuse to carry any and all messages regardless of content, you quarterwits)

But what they're really leading up to is this, which has, oh, a couple of problems:

1) This same stupid fucking argument has been repeatedly rejected by the courts in well-reasoned opinions these morons don't bother responding to;

2) You aren't seeking a declaratory judgment that 230 is unconstitutional; and

3) Linear fucking time, guys.

No, seriously - you can't sue the people who run the Biden Admin for a law passed by Congress in the 1990s

I mean hell, when 230 was passed none of these social media companies even existed. Stop it.

Anyway, they move from this to arguing that "Government flagging information as problematic makes a private company's decision to remove that content 'joint action'" and "threatening to amend 230 is coercion" and guys, this is just such a loser of an argument whyyyyyy?

Oh look, it's the Alex Berenson complaint that just got tossed.

At this point, they may as well just plead "Your Honor, we're well aware we have no standing"

LOL this is so fucking dumb it's hard to even explain. If it's a violation of the 1A (it's not), whether it's "in excess of statutory authority" is irrelevant.

And if it's not, there's no need for express statutory authority for every comment or initiative an agency takes

No statute authorizes these folks to take a piss, either, but they're allowed to. Congress doesn't get to regulate what the White House does or doesn't identify as misinformation. And what the hell even is paragraph 265?

It's conclusory constitutional word-salad. It's like they ran a search on SCOTUS decisions overturning federal action and just decided to list every buzzword they found, without remotely articulating how or why it's relevant.

The canon of constitutional avoidance? The rule that says courts should avoid ruling on constitutional grounds if there's another basis to rule?

Motherfuckers, it's literally impossible for executive branch officials to violate that. They're not fucking courts.

OK, we're almost done. And I've been doing these threads long enough to know that there's always another depth to be reached. But that has to be the most idiotic thing in this entire singularity of moronicness, right?

What exactly is the "agency action" here? Saying things you dislike? That's not agency action. The Administrative Procedure Act doesn't require notice-and-comment rulemaking before an agency can say "the things you're saying are false and dangerous"

What's the "policy"?!

And then count 4 literally repeats these paragraphs but aimed at DHS.

That's it for this lolsuit.

In sum, it's a substantively meritless, strategically incompetent, frivolous waste of everyone's time and money.

Courts really have to start sanctioning people who bring this shit.