Judge Blocks Missouri AG’s Elon-Inspired Censorial Vindictive ‘Investigation’ Into Media Matters

Free Speech

from the another-one-bites-the-dust dept

Yet another federal judge has blocked a censorial, vindictive government “investigation” into Media Matters for having the temerity to report on seeing ads on ExTwitter showing up next to neo-Nazi content.

To recap: in November, Media Matters released an article written by Eric Hananoki. The article detailed an investigation in which they found ads from big name advertisers like Apple, IBM, and Oracle showing up next to pro-Nazi content. This happened a day after Elon had tweeted “You have said the absolute truth” in response to someone who had tweeted an antisemitic conspiracy theory.

Those two things together caused many advertisers to pause their advertising on ExTwitter.

In response, Musk sued Media Matters in Texas (and in Ireland). He also (following a stupid tweet from Trump advisor Steven Miller) appeared to encourage state Attorneys General to “investigate” Media Matters as well. This resulted in Missouri’s AG Andrew Bailey promising his team was “looking into this matter.”

Both Bailey and Texas’ Ken Paxton launched investigations, issuing Civil Investigatory Demands (CIDs) to Media Matters. Media Matters went to court in both cases to challenge the CIDs, noting correctly that they appeared to be vexatious attacks for its constitutionally protected speech.

In April, Judge Amit Mehta in the federal district court in Washington DC blocked Ken Paxton’s CID, noting that it was clearly retaliation for Media Matters’ speech. Last week, Judge Mehta did the same thing for Andrew Bailey’s CID.

The Bailey part is a bit strange, because Bailey rushed to a state court in Missouri to seek to enforce the CID before Media Matters had even seen it. Shortly after that, Media Matters amended its complaint against Paxton, in Mehta’s courtroom, to also include the Bailey CID.

Not surprisingly, Mehta sees through Bailey’s nonsense just as he had with Paxton. Bailey tried to claim that Younger abstention applies because he filed his case in state court before Media Matters added him to their lawsuit. That’s where federal courts aren’t supposed to involve themselves in matters still before state courts. We’ve talked about that in other cases before.

But here, Mehta says that Younger abstention is limited to “only exceptional circumstances,” and he doesn’t find this exceptional. Indeed, Mehta’s analysis of the request to apply Younger abstention repeatedly points out how obvious it is that Bailey is just trying to rack up pain on Media Matters, rather than filing a legitimate case against them.

After a few other procedural points, Mehta gets down to the heart of the matter. It’s obvious that Bailey is doing exactly what Paxton was before him: trying to suck up to Elon Musk with a censorial, vexatious “investigation” into Media Matters for its protected speech. While Paxton didn’t even put up much of a defense to what he was doing, Bailey at least tried to claim that if Media Matters defamed ExTwitter, then it’s no longer protected speech.

But, of course, as we and others pointed out, the lawsuit Elon filed did not even accuse Media Matters of defamation. Instead, it flat out admitted that Media Matters did find exactly what it claimed to find. Judge Mehta points that out in response to Bailey’s argument:

But in his reply brief, for the first time, Defendant raises the possibility that Media Matters’ reporting is not protected expression. In a section addressing the causation element, he argues, “if in fact Media Matters defamed X by knowingly posting false information, then its activity was not protected by the First Amendment, and so no ‘retaliation’ is even possible.”…

… Even if preserved, on the present record, Plaintiffs have likely shown that their reporting was not defamatory and therefore was protected speech under New York Times v. Sullivan. Hr’g Tr. at 75:22-23 (“We absolutely stand by the defense that everything in Media Matters[’] reporting was accurate.”). Hananoki has averred in these proceedings that his “November 16 article contains screenshots of X feeds, which include at least nine organic posts from X users and six advertisements from major corporate entities.” Pls.’ Mot. for TRO & Prelim. Inj., ECF No. 4, Decl. of Eric Hananoki in Supp. of Pls.’ Mot., ECF No. 4-3, ¶ 15 [hereinafter Hananoki Decl.]. In its public response to Hananoki’s article, X did not deny that advertising in fact had appeared next to the extremist posts on the day in question. X stated that it had served “less than 50 total ad impressions” next to the “organic content featured in the Media Matters article” (a mere fraction of the 5.5 billion ad impressions served that day), and it conceded that Hananoki and one other person had seen advertisements of two of the brands identified in the article next to the extremist content. See Compl., ECF No. 1, ¶ 44 [hereinafter Compl.]; Elon Musk (@elonmusk), X.COM (Nov. 18, 2023, 2:01 AM), https://perma.cc/X4HN-PLJ4. X called these “contrived experiences,” but did not deny the basic premise of the article: that X’s platform was delivering ads of major brands next to extremist content. Many other media outlets, as recently as April 2024, have published similar findings. Compl. ¶ 34; Third Hananoki Decl. ¶¶ 13–14. These other stories corroborate Hananoki’s reporting and Plaintiffs’ belief in its accuracy.

From there, it’s easy for Mehta to point out that Bailey’s CID serves to chill speech.

The court already has held that Defendant Paxton’s announcement of an investigation and issuance of a CID demanding records relating to Media Matters’ organization, funding, and journalism would sufficiently deter a news organization or journalist “of ordinary firmness” from speaking again about X-related matters. Media Matters, 2024 WL 1773197, at *18 (explaining why Defendant Paxton’s actions satisfied the second element and describing chilling effects of the Texas CID). Defendant Bailey has gone one step further. He has filed suit not only to enforce the Missouri CID, but he has asked a state court to sanction Media Matters with a civil penalty. Such action chills speech.

And that speech chilling has already happened:

Further, Plaintiffs’ “actual response” demonstrates the chilling effects of Defendant Bailey’s conduct. See Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005). Plaintiff Hananoki avers that the CID and Petition, as well as Defendant Bailey’s public attacks, “have had an extremely negative effect on my work and on me personally.” Third Hananoki Decl. ¶ 10. He continues to limit his communications with other journalists and his editor, and self-censors research and writing on X. Id. ¶ 12. Hananoki’s editor, Benjamin Dimiero, confirms that Hananoki and other Media Matters’ journalists have self-censored out of fear that “certain topics will lead to backlash, and perhaps even imperil the organization’s future operations.” Second Dimiero Decl. ¶ 7. He also attests that Defendant’s actions have adversely impacted Media Matters’ editorial process, resulting in slowed output and hampering efforts to issue timely reporting. Id. “[E]xtreme[] caution[]” remains pervasive within the organization. Id. ¶ 6; see also Suppl. Padera Decl. ¶¶ 12 (describing “chilling [of] employees’ willingness to speak, research, or report on topics related to the subjects of the investigations and the Petition”), 13–14 (describing impaired collaboration with other groups).

Bailey also argued that because Media Matters couldn’t directly show that his actions were retaliatory, it can’t claim that they are. The judge isn’t buying any of that, especially the fact that the basis for Bailey to claim that is a criminal law precedent, which likely doesn’t even apply here.

The court is not convinced that Nieves applies here. Defendant cites no case in which a court has applied Nieves in the civil context. To the contrary, courts have declined to extend Nieves beyond the retaliatory arrest setting.

Also, the judge calls out that Bailey’s investigation appears to have come directly from Stephen Miller’s request, which is another indication that it is retaliatory:

Plaintiffs have shown that many other news outlets published similar stories about advertising appearing next to antisemitic and extremist posts on X, yet none received a CID from Defendant Bailey. Compl. ¶ 34 (e.g., Washington Post, Business Insider, Kansas City Star) (links to articles verified by court); Third Hananoki Decl. ¶ 13 (NBC News). But only one drew the condemnation of former Trump aide, Stephen Miller. See Compl. ¶ 46. It is no coincidence that both Defendants Paxton and Bailey announced investigations of Media Matters shortly after Miller implicitly called on “conservative state Attorneys General[s]” to do so

But, more to the point, Bailey’s own words and actions revealed that the case was retaliatory against Media Matters’ speech:

First, Defendant’s public statements are direct evidence of retaliatory intent. Two days after Media Matters published the November 16 Article, Musk posted a tweet threatening “a thermonuclear lawsuit against Media Matters” for its “fraudulent attack on our company,” accusing Media Matters of manipulating X’s algorithm to artificially force placement of the ads next to extremist content. See Compl. ¶¶ 44–45; Elon Musk (@elonmusk), X.COM (Nov. 18, 2023, 2:01 AM), https://perma.cc/X4HN-PLJ4. In response, Stephen Miller tweeted, “Fraud is both a civil and criminal violation. There are 2 dozen+ conservative state Attorneys General.” See id. ¶ 46; Stephen Miller (@StephenM), X.COM (Nov. 19, 2023, 11:48 AM, https://perma.cc/9E6LFJGY (emphasis added). Only hours later, Defendant Bailey took up Miller’s call, responding “[m]y team is looking into this matter,” even when there was no apparent connection to Missouri. See id. ¶ 47; Andrew Bailey (@AGAndrewBailey), X.COM (Nov. 19, 2023, 4:46 PM), https://perma.cc/J463-656K. Defendant’s investigation thus began with a political bent.

From that point forward, Defendant consistently characterized Media Matters in ideological terms. When publicly announcing his issuance of the document preservation notice, Defendant referred to Plaintiffs as “radicals” and called them “progressive tyrants masquerading as [a] news outlet[].” Pls.’ Ex. 4 at 4. He also claimed Media Matters had acted to “wipe out free speech.” Id. Months later, when simultaneously issuing the CID and filing the Petition, in a press release he called Media Matters a “political activist organization” and “‘progressive’ activists masquerading as [a] news outlet[],” which had “pursued an activist agenda in its attempt to destroy X.” Suppl. Compl., Ex. 7, ECF No. 46-5, at 3. These statements are at odds with Defendant’s concession in these proceedings that Media Matters is a “media company” that is “absolutely” entitled to “core” First Amendment protections.

It would appear that Bailey’s eagerness to join in the culture war fun helped sink his own case.

Then, on June 3, 2024, Defendant Bailey said out loud the true purpose of his investigation. During an online interview with Donald Trump Jr., Defendant Bailey was asked “what’s the end game” of his investigation of Media Matters. Defendant Bailey responded: “It’s a new front in the war against the First Amendment . . . We’ve seen a direct assault by the deep state and President Biden’s Administration.” He accused Media Matters of “rigging the system to take down X.” He continued:

They don’t want us to have a medium of communication and they will bend and break the rules through any means necessary . . . My office was one of the first in the nation joined by my colleague Ken Paxton in Texas to file an investigation, launch an investigation, into Media Matters . . . We’re not going to let them destroy free speech in America[.]

Revealingly, Defendant Bailey expressly tied the investigation to the upcoming election: “This is absolutely a new front in the fight for the war for free speech. This investigation is really critical and again especially as we move into an election cycle in 2024.”6 (Emphasis added.) Finally, on June 5, 2024, Defendant Bailey once again reiterated on a podcast that Media Matters is a “radical progressive advocacy group masquerading as a 501(c)(3) . . . when in reality what they really want to do is want to silence conservative voices.”

Although tough talk is not foreign to the law enforcement arena, such overt political messaging is atypical. A reasonable factfinder is likely to interpret Defendants’ words as targeting Media Matters not for legitimate law enforcement purposes but instead for its protected First Amendment activities.

Furthermore, the judge points out that while Bailey’s office keeps claiming the investigation is to investigate potential “fraud” by Media Matters in soliciting donations, nothing they’ve done substantiates that that’s what they care about. Rather, it’s almost entirely about Media Matters’ speech about ExTwitter.

Even accepting this as evidence that Media Matters’ reporting about X was misleading if not defamatory, Reed nowhere explains how the publication constitutes “fraud to solicit donations from Missourians.” Pls.’ Ex. 6 at 2. He never identifies what suspected fraudulent statements or omissions Media Matters made to Missourians for the purpose of soliciting donations. If he means to say that Media Matters’ defamatory reporting itself is the fraud, he nowhere links that content to Media Matters’ fundraising efforts. He does not claim, for example, that Media Matters used its reporting on X to solicit donations. In fact, the webpage on which the November 16 Article appeared made no express fundraising appeal. Nor did it include a donation link. Defamation is not fraud. It is thus likely that the false reporting-as-fraudulent fundraising justification for the investigation is pretext for retaliation.

Even worse, Bailey’s office told the court that it had “come into possession of internal Media Matters documents” that reveal “plans by the organization to use solicited funds for activities contrary to those publicly disclosed to its Missouri donors.” But, you know, the judge gets to see those documents too. And the judge isn’t stupid. Because the documents are, for the most part, neither “internal” nor are they “contrary” to what Media Matters has long stated publicly:

The court has reviewed the documents. See Minute Order, June 7, 2024. It is perplexed by Reed’s representations.

The records are internal strategic action plans that identify Media Matters as one of multiple organizations aligned to resist President Trump. Media Matters, the strategy materials say, plans to “disarm[] right-wing misinformation,” “lead[] the fight against the next generation of conservative misinformation,” coordinate opposition research, push news stories and research, and fight for ethical standards in government. Pls.’ Resp. to the Court’s June 7 Minute Orders, ECF No. 65 [hereinafter Pls.’ Resp.], Ex. A, ECF No. 65-1 [hereinafter Pls.’ Ex. A], at 1, 7–8. The documents appear to be published around 2016, seven years before Hananoki’s reporting on X, a fact Defendant Bailey appeared to confirm on a podcast. One of the documents has been publicly available on the internet since 2017.

[….]

The court does not understand how a publicly available document written in 2016, years before Elon Musk acquired X, is proof that Media Matters “used fraud to solicit donations from Missourians in order to trick advertisers into removing their advertisements from X” in 2023. Pls.’ Ex. 6 at 2. The “targets” referenced in 2016 document were small “alt-right” online publications that Media Matters believed pushed “fake news,” not large social media platforms like thenTwitter, now X, that host content created by others. And, the way Media Matters would accomplish its objective, according to the 2016 document, was by working with large social media companies like Google and Facebook, not against one like X, then-Twitter

What’s more, Defendant’s declaration is incomplete. Reed accurately quotes from a portion of Media Matters’ website to claim that it misrepresented its mission to donors. Second Reed Decl. ¶ 6. The website does say that Media Matters “posts rapid-response items as well as longer research and analytic reports documenting conservative misinformation throughout the media” and “works daily to notify activists, journalists, pundits, and the general public about instances of misinformation.”…. But Reed omits a key statement: that Media Matters’ work includes “providing [activists, journalists, pundits, and the general public] with the resources to rebut false claims and to take direct action against offending media institutions.” Id. Defendant’s selective quotation of Media Matters’ website undermines the credibility of his representations. Alongside his overselling of a years-old, publicly available document, it is proof of pretext.

Mehta also points out that Bailey’s rush to the courthouse reveals how this was retaliatory rather than legitimate:

According to the Petition, the reason Defendant filed it before Media Matters even received the CID was that Media Matters “has failed or will fail to comply with” it. Pls.’ Ex. 6 ¶ 25 (emphasis added). Defendant’s assertion that Media Matters “will fail” to comply was based on its earlier lawful filing of this suit against Defendant Paxton. Id. ¶¶ 19–20. But MMPA § 407.090, which Defendant cites as the source of his authority to enforce the CID, does not authorize filing suit in anticipation of noncompliance. It provides that the Attorney General may request a court order “[w]henever a person fails to comply with any civil investigative demand[.]” Mo. Rev. Stat. § 407.090. Media Matters, of course, had not yet “fail[ed]” to comply with the Missouri CID as of March 25, 2024, because the CID was still en route. See Suppl. Compl. ¶ 23. Defendant’s filing of a preemptive suit not authorized by Missouri law is evidence of retaliatory intent.

In addition, Bailey demanded that Media Matters pay up for not responding to his CID, which leads the judge to say this is even more evidence of retaliation:

Then, Defendant Bailey sought to tilt the playing field in his favor. On May 24, 2024, before filing his reply in support of his motion to dismiss, Defendant returned to Missouri state court to amend his Petition. He added a second count, “Request for Civil Penalty,” which sought a $1,000 civil penalty for Media Matters’ failure to produce records by the April 15 deadline, which had passed 40 days earlier. Def.’s Ex. A at 11. Based on his reformulated Petition, Defendant argued to this court: Media Matters’ assertion that the Petition does not seek to punish wrongdoing “is easily dispensed with” because the “operative complaint seeks a $1,000 civil penalty” and for that reason Smith & Wesson is “starkly different.” Def.’s Reply at 2–3. He also asserted that, regardless of the civil penalty request, Plaintiffs’ failure to timely respond to the Missouri CID was itself a violation of Missouri law, making the enforcement action one seeking to sanction an “unlawful act.”…

From this timeline, it is apparent that Defendant Bailey amended the Petition to request the $1,000 civil penalty to distinguish this case from Smith & Wesson. After all, Defendant waited 40 days after April 15 to seek the civil penalty, and he did so only after Plaintiffs cited to a case that is nearly on all fours with this one. Defendant offers no reason for this sequencing of events other than the one drawn by the court. It is yet more proof that retaliation for protected expression was likely his true motive for investigating Media Matters.

So that makes both CIDs blocked. And, yet, as we’ve explained elsewhere, in the ExTwitter case against Media Matters, Judge Reed O’Connor in Texas has no problem letting the case move on to discovery, even when there’s clearly no jurisdictional reason for his Texas court to take on the case.

Filed Under: 1st amendment, amit mehta, andrew bailey, cid, elon musk, fraud, missouri, protected speech, retaliatory, younger abstention
Companies: media matters, twitter, x

First Amendment Doesn’t Quite Cover Students’ ‘Let’s Go Brandon’ Shirts, Says Federal Court

Free Speech

from the take-it-far,-far-outside,-kids dept

It’s well-established that students still have Constitutional rights, even if some school administrators clearly believe otherwise. But they are limited, especially when on school grounds. There’s a lot of nuance in play. When those nuances are ignored, lawsuits get filed.

There’s plenty of nuance in this case, but not a lot of subtext. We all know what “Let’s Go Brandon” really means. The students in this case knew it too. And that collective knowledge — borne out of a TV broadcaster’s unfortunate attempt to recast the chants of “Fuck Joe Biden” that filled the air as he interviewed NASCAR driver Brandon Brown following his win in Talladega, Alabama — factors heavily into this decision [PDF] issued by a Michigan federal court. (h/t Volokh Conspiracy)

A few months after this poor reporter turned “Let’s Go Brandon” into shorthand for “Fuck Joe Biden,” two students (X.A. and D.A.) were given “Let’s Go Brandon” shirts by their mother as gifts. They both wore these shirts to school. They were both told to remove them. They both complied. In D.A.’s case, he wore another shirt under his “Let’s Go Brandon” sweatshirt with the same phrase on it, resulting in him being sent to the school social worker to get a more acceptable shirt to wear.

Both students were well-aware of the double meaning. Both admitted as much when deposed. Their parents knew what the phrase meant as well. So did the teachers and administrators who ordered the students to remove their shirts. However, the family (all of which are plaintiffs) argued the shirts were political speech, and even if they weren’t, at face value they contained no words that violated school policies against profanity.

The court says this doesn’t matter as much as the plaintiffs want it to. Schools are free to ban profanity from students’ clothing, even when the printed words aren’t actually profanities themselves. It helpfully serves up a selection of similar incidents either the court or the school’s employees had encountered in the past.

If schools can prohibit students from wearing apparel that contains profanity, schools can also prohibit students from wearing apparel that can reasonably be interpreted as profane. Removing a few letters from the profane word or replacing letters with symbols would not render the message acceptable in a school setting. School administrators could prohibit a shirt that reads “F#%* Joe Biden.” School officials have restricted student from wearing shirts that use homophones for profane words. See, e.g., Mercer v. Harr, No. Civ. A. H-04-3454, 2005 WL 1828581 (S.D. Tex. Aug. 2, 2005) (granting summary judgment in favor of the middle school when the school forbid a student from wearing a shirt that read “Somebody Went to HOOVER DAM And All I Got Was This ‘DAM’ Shirt.”). Defendant Bradford recalled speaking to one student who was wearing a hat that said “Fet’s Luck”. She thought the hat was inappropriate for school because rearranging the first letters of the two words resulted in a lewd message. Defendant Buikema testified that he asked a student to change out of a hoodie that displayed the words “Uranus Liquor” because the message was lewd. School officials could likely prohibit students from wearing concert shirts from the music duo LMFAO (Laughing My F***ing A** Off) or apparel displaying “AITA?” (Am I the A**hole?).

Context matters. There’s plenty of it here. No one on either side of this litigation was confused about the real meaning of this phrase. Pretending these three words only mean literally what they say isn’t a credible argument, especially when the plaintiffs themselves have already admitted otherwise.

The phrase means something other than the dictionary definition of the three words. D.A. and X.A. are not enthusiastic supporters of someone named Brandon. Albeit using different words, Let’s Go Brandon, means F*** Joe Biden, a personal insult containing a swear word. Defendants both interpreted the phrase as having a profane meaning. Both D.A. and X.A. thought the phrase was funny because it meant a profanity. When students use language in a school setting that can reasonably be interpreted as inappropriate, courts have permitted schools to discourage students from using that language.

The First Amendment covers some speech by students. It does not, however, cover the shirts that were only allowed to cover the plaintiffs for part of their school day.

In school settings, profanity does not enjoy First Amendment protection. Directing profanity toward a political figure does not transform the utterance to protected speech. Indisputably, the phrase Let’s Go Brandon originated as a profane personal insult directed at President Joe Biden. When Plaintiffs wore sweatshirts bearing the phrase to their middle school, school officials reasonably interpreted the phrase as having a profane meaning. The school officials then enforced the dress code and had Plaintiffs change their attire. The school’s actions did not violate Plaintiffs’ First Amendment rights.

And there it is. Students will either have to deploy phrases administrators haven’t figured out yet or transform other innocuous words into incognito profanities if they want to get away with swearing in school. The school can still ban “Let’s Go Brandon” from its campus without violating the Constitution… or at least until someone brings a better case than this to the same judicial circuit.

Filed Under: 1st amendment, free speech, michigan, student speech, tri county middle school