Judge Doughty’s Conspiracy Theory: How RFK Jr. Got Standing To Sue Over Imaginary Censorship

In June of this year, the Supreme Court sent the Murthy case back to the lower courts. The Court argued that the plaintiffs all appeared to lack standing to sue the Biden administration over claims of social media censorship. While the Court focused on the standing issue, the majority opinion also made abundantly clear that a big part of the problem was the absolute nonsense that the plaintiffs had filed. That nonsense had no basis in reality, and yet the lower courts not only insisted the lies were true, but even embellished them.

The major player at fault in all of this was Judge Terry Doughty in Louisiana. He infamously published his original opinion on July 4th, claiming that the suit had uncovered one of the most extreme cases of government censorship in violation of the First Amendment that had been seen in decades. But that was based off of not just believing a ton of nonsense, but actively taking some things out of context, inserting words into quotes to make them mean the opposite of what they meant, and much much more.

Indeed, when the Murthy decision came out from the Supreme Court, it called out just how sloppy the record was below. And while it didn't call out Judge Doughty directly, the court made it pretty clear that Judge Doughty should maybe not look at absolutely everything through a prism of how can I spin this to make the Biden administration look the worst."

Judge Doughty does not appear to have gotten the message.

As we mentioned recently, while the Murthy case did not involve RFK Jr., he has tried to glom onto it and add his name as a plaintiff. The judge had put that on hold while the Supreme Court process worked out, but now that that's concluded, the issue eventually had to come up again. The Biden administration told Judge Doughty it's pretty obvious that, based on the ruling in Murthy, RFK Jr. has no standing to sue here either:

The Supreme Court's conclusion that the plaintiffs in Murthy v. Missouri, 144 S. Ct. 1972 (2024), lacked standing-both on a speaker theory (based on restrictions on their own posts on social-media platforms) and on a listener theory (based on restrictions on others' posts)-applies with equal force to the Plaintiffs in this action, Kennedy v. Biden, 3:23-cv-00381 (W.D. La.). Even if they had not waived a speaker theory of standing, Plaintiffs here-like the Missouri plaintiffs- have not shown that any particular platform moderated any particular instance of their speech as a result of the actions of any particular Defendant, much less an imminent prospect that any platform would do so in the future absent an injunction against Defendants. Missouri requires both showings to establish standing. Rather, as the Supreme Court held in Missouri on a substantively identical record, the evidence instead shows that the platforms moderated similar content long before any of the Government defendants engaged in the challenged conduct," and the platforms continued to exercise their independent judgment even after communications with the defendants began."

In short: the Supreme Court just made it clear that for there to be standing, the plaintiff needs to show that (1) the government directed a social media platform to remove content and (2) the platform did so when it would not have otherwise done so.

But this is Judge Doughty we're talking about, and he seems so primed to find government censorship that he would probably claim a park ranger telling visitors to stay on a trail is akin to censorship. So, in a recent ruling, he found that RFK Jr. absolutely has standing to sue the Biden administration. Of course, the only way he could do this was to just misrepresent everything yet again.

There is ample evidence in the record showing that Kennedy has been directly censored in the past. Not only was he a part of the alleged Disinformation Dozen," which was repeatedly flagged and/or censored at the behest of numerous Defendants, but he was also censored for his anti-vaccine and anti-COVID-19 rhetoric. Therefore, Kennedy has more than satisfied the first element for Article III standing, that is, he suffered an injury-in-fact when he was censored. The injury is traceable to the Government Defendants, as there were numerous orders that social-media companies censor the Disinformation Dozen." Finally, Kennedy has satisfied the third element of standing as this injury is likely to be redressed by a favorable judicial decision (in this case, a preliminary injunction).

So first off, there is ample evidence that Kennedy has had actively harmful disinformation he posted (mostly about vaccines) moderated. However, there is no evidence that it happened because of the government. It is true that the government did send some requests to Facebook, but none of them appear to be even remotely threatening or coercive. And as the Supreme Court made clear in the Murthy ruling, purely persuasive messaging - asking a private entity to do what it would do normally - is allowed (indeed, Justices Kagan and Kavanaugh both noted that when they worked for the federal government they often tried to persuade private sector folks to do things).

While Judge Doughty leans heavily on The Disinformation Dozen," that report was not produced by the government, but by a private non-profit, the Center for Countering Digital Hate. The facts show pretty clearly that Facebook never took that report as an order to remove anything. Some government officials did take that report as meaningful and did ask Facebook officials how they were dealing with the people on that list, but there's no indication in the record that Facebook changed what it was doing in response to government pressure at all.

And here's where Doughty drops into pure conspiracy theory gibberish.

First, he completely (embarrassingly) misrepresents a report from the Election Integrity Partnership called The Long Fuse. You can read the report yourself. Nothing in it is about government censorship at all. The report was a recap of how the EIP watched for election-related mis- and disinformation, which tended to be things around (1) misleading people about when, where, and how to vote, (2) impersonating election officials, and (3) falsely claiming election or voter fraud when there was none. As the report makes clear, EIP's job was not even remotely related to censorship." It was about spotting trending information that might lead to problems with the election and sharing it with relevant stakeholders, and letting them decide what to do about it. And, as you read the report, the main thing everyone was focused on was counter-messaging that kind of speech when it came up, not censorship." The report is pretty clear on this:

All stakeholders must focus on predicting and pre-bunking false narratives, detecting mis- and disinformation as it occurs, and countering it whenever appropriate.

This is not about censorship" or even moderation." It's about let's think through what sorts of disinfo may occur, and have a plan on how to respond to better protect people from potential risks."

All the EIP and the report were talking about was better preparing stakeholders to respond to misleading content, usually with more speech (fact-checking, responses, context, etc.). But today's Trumpist Republican party seems to think that counter-messaging is a form of censorship itself. This is dangerously disconnected from reality.

The Long Fuse report keeps talking about more speech, not censorship or content removals. And while the report sometimes did talk about flagging information to platforms, it was to review under their own terms of service. It's clear that the companies felt no pressure to remove content, because they didn't remove very much of it.

As we've discussed in the past, the evidence in the report itself shows that platforms did not take action on the vast majority of the content reported by the EIP. Only 13% of content that was flagged was removed, and a huge percentage of those removals came from one company: TikTok.

Even moving past removals, the report shows that platforms only took action" on 35% of the URLs that were reported, and most of the actions they did take were labeling (i.e., providing more speech that added context).

It was extremely rare that any content was removed, and it appeared to basically only happen in the most extreme cases where the content was really fraudulent (i.e., phishing attacks or fake official accounts). And the numbers here were skewed by the fact that TikTok was way more willing to take down content reported than anyone else (suggesting the percentages were even lower for Facebook/Twitter):

We find, overall, that platforms took action on 35% of URLs that we reported to them. 21% of URLs were labeled, 13% were removed, and 1% were soft blocked. No action was taken on 65%. TikTok had the highest action rate: actioning (in their case, their only action was removing) 64% of URLs that the EIP reported to their team.

Yet, to Judge Doughty, the Long Fuse report was entirely about the government using the EIP to censor content. First, he falsely claimed that the EIP was created by CISA, the Cybersecurity and Infrastructure Security Agency. This has long since been debunked, but is still believed by the nuttiest Trumpist conspiracy theorists, which appears to include Judge Doughty. But, even worse, he claims that the entire project was a project for censorship, which any plain reading of the document reveals is bullshit. This is just a flat-out misrepresentation by Judge Doughty:

The Long Fuse sought to censor both misinformation" and disinformation." The report defined misinformation" as false, misleading, or exaggerated information or claims". The stated goal of the EIP was to detect and mitigate the impact of attempts to prevent or deter people from voting or to delegitimize election results." Like the Virality Project, the EIP used tickets" to identify alleged election misinformation and report it to social-media platforms.

Yes, you disinformation spreader, the goal was to detect and mitigate" which means respond to" not censor." You would know this if you actually paid attention and weren't trying to tilt the scales to the conspiracy theorist plaintiff in front of you.

Even worse, Doughty then invents a totally fictional scenario in which the FBI wants to censor" RFK Jr. and claims they could do so by alerting the EIP:

In the instant case, Kennedy has provided evidence showing that as a result of the actions of certain Government Defendants, he was restricted in the past. He has provided the Court with concrete links between his injuries and Defendants' conduct. The Court finds that there is further risk for future risk injury here because Kennedy is a 2024 presidential candidate. For example, if, hypothetically, the FBI saw a piece of information related to the 2024 presidential election posted by the Kennedy campaign on social media that it deemed to be misinformation," then it reached out to CISA, who worked closely with the EIP, who then removed the posts, Kennedy would be censored by the action of one Government Defendant in response to another. Therefore, there is a risk of a real and immediate threat of repeated injury.

That's a hallucination worse than anything you'd see from ChatGPT. That's not how any of this worked. As the report makes clear, (1) CISA does not work with EIP to remove content, (2) EIP does not suggest anyone remove any content, let alone (as Doughty says) remove that content itself, and (3) the platforms don't take any orders from EIP anyway. They mostly ignore most reports, which are purely informational, and they add more context (more speech!) to the majority of the reports they do react to. They only very rarely remove posts if they're things like outright fraud or phishing.

Oh, and the EIP no longer exists and hasn't existed in years.

And yet Doughty uses this hallucination to justify the claim that not only was RFK censored" by the government, but he's at great risk of it happening again because the FBI might do something it hasn't done by pushing EIP, an operation that hasn't existed in years, to do something it had no power to do in the first place.

How is this person a federal judge?

This is embarrassing. It's basically chemtrails-level fiction writing from a federal judge, making up impossible scenarios to justify a ridiculous ruling.

This is Doughty doing his Doughtyiest. Just making up shit to justify something not found in the facts of the case. And, of course, from there the only thing to do is to go to the Fifth Circuit, which hasn't been great on this either. But it also means that the Supreme Court's unwillingness to clearly stamp this kind of bullshit out with its Murthy decision means that we need to go through this whole thing all over again.