Select Subcommittee On The Weaponization Of The Federal Government
Testimony of D. John Sauer Summary Statement
Mr. Chairman, Members of the Subcommittee:
On July 4, 2023โIndependence DayโJudge Terry A. Doughty of the U.S. District Court of the Western District of Louisiana entered an historic injunction against White House and other federal officials to prevent them from โurging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms.โ Ex. 2, at 4.
Judge Doughtyโs opinion contains 82 pages of detailed factual findings, supported by 577 citations of the record evidence, drawn from roughly 20,000 pages of the federal Governmentโs own emails and communications with social-media platforms, and the sworn testimony of senior federal officials in six full-length depositions. Ex. 1, at 4-86.
The Department of Justice filed an โemergencyโ stay motion in the U.S. Court of Appeals to block this injunction. Notably, in its stay motion, the Government hardly disputed a single factual finding from Judge Doughtyโs opinion. These factsโsupported by overwhelming evidence drawn from federal officialsโ own mouthsโare irrefutable.
The Court of Appeals has not granted this stay motion, but it has entered a โtemporary administrative stayโ and granted expedited briefing and oral argument on August 10. Contrary to some recent suggestions, a temporary administrative stay in such cases is โroutine practiceโ in the Fifth Circuit and does not reflect a prejudgment of the merits. In re Abbott, 800 F. Appโx 296, 298 (5th Cir. 2020).
The Louisiana opinion demonstrates that federal officials have covertly injected themselves into the content-moderation decisions of major social-media platforms, through a years-long campaign of threats, โunrelenting pressure,โ collusion, and deceit. This campaign targets specific speakers and viewpoints, and it also affects platformsโ content-moderation policies.
Today, I offer seven observations drawn from the Louisiana opinion:
First, the Louisiana court found, based on overwhelming evidence, that federal officials cause the censorship of disfavored viewpoints. The Government frequently claims that social-media platforms, acting on their own, would censor all the targeted speech anyway. This is demonstrably false. Again and again, the Louisiana court found the platforms would not suppress the speech that federal officials target absent their intervention; federal officials cause the additional censorship. The deplatforming of Alex Berenson, the throttling of Tucker Carlsonโs content, the silencing of the so-called โDisinformation Dozen,โ the de-boosting of so-called โborderlineโ content on Facebook, the censorship of the Hunter Biden laptop story, and much moreโall were suppressed because of federal officialsโ efforts.
Second, the scope and reach of federal censorship is staggering. As Louisiana found, it affects โmillionsโ of social-media speakers and posts across America. It affects virtually any American who reads, listens, engages, or posts on social media about hotly disputed social and political questions.
Third, federal censorship is ongoing and shows no signs of stopping. The Louisiana opinion cites undisputed evidence demonstrating that federal officialsโ censorship efforts are in full swing, and they are expanding to new frontiers. Left unchecked, federal censorship will reach virtually any disputed social and political question over which federal officials want to impose their power.
Fourth, the Louisiana opinion shows that federal officials are most eager to silence truthful speech, and to muzzle the most influential critics of the Administration and its policies. Tucker Carlson, Alex Berenson, and others were censored because they were the most effective speakers opposed to the Administration and its policies. Federal officials try to justify censorship as protecting innocent Americans from supposed โmisinformationโ and โdisinformation.โ This defense is false. Censorship is not about truth. It is about powerโpreserving and expanding the power of the censors and the political narratives they favor.
Fifth, federal officials are deeply intertwined with the โCensorship-Industrial Complex.โ The Louisiana court made detailed findings about the close connections and cooperation between federal national-security officials and the mass-surveillance and mass-censorship enterprise calling itself the โElection Integrity Partnershipโ and the โVirality Project.โ Not just CISA officials, but also White House, State Department, and Surgeon General officials have deep ties to this enterprise. As Louisiana found, โCISA and the EIP were completely intertwined.โ
Sixth, federal officials not only dictate the outcomes of specific content-moderation decisions. They also directly induce changes to content-moderation policies at major social-media platforms to ban disfavored viewpoints in advance. As the Louisiana court held, federal officials used โthe power of the government to pressure social-media platforms to change their policies and to suppress free speech.โ
Seventh, the federal Censorship Enterprise has succeeded in transforming online discourse throughout America by rendering entire viewpoints virtually unspeakable on social mediaโthe โmodern public square.โ It also directly interferes with another cherished First Amendment freedomโthe right of citizens to organize to petition the government for redress of grievances. This ongoing distortion of the most fundamental American freedom, the right to free speech, is intolerable under the First Amendment.
I welcome the Subcommitteeโs questions.
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Biographical Statement
D. John Sauer is the Founder and Principal of the James Otis Law Group, LLC. He serves
as a Special Assistant Attorney General for the Louisiana Department of Justice under Attorney General Jeff Landry, where he acts as litigation counsel in the case Louisiana, et al. v. Biden et al., No. 3:22-cv-01213-TAD-KDM (W.D. La.). He served for six years as the Solicitor General of Missouri in the Missouri Attorney Generalโs Office, and for five years as an Assistant U.S. Attorney in the Eastern District of Missouri. Mr. Sauer has argued in the U.S. Supreme Court and handled litigation and appeals in cases across the country. He is a Rhodes Scholar and a magna cum laude graduate of Harvard Law School. During October Term 2005, he served as a law clerk to Justice Antonin Scalia of the U.S. Supreme Court.
Written Testimony
My name is D. John Sauer. I serve as a Special Assistant Attorney General for the State of Louisiana, and I serve as litigation counsel in the case Louisiana, et al. v. Biden, et al., No. 3:22-cv-01213-TAD (W.D. La.) (โLouisianaโ). I testified before this panel on March 30, 2023, regarding the status of discovery in that case. My previous testimony is attached as Exhibit 3. I speak here today in my individual capacity, and not on behalf of any of my clients.
On July 4, 2023โIndependence DayโJudge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana entered a historic injunction in Louisiana v. Biden. See Louisiana Docs. 293, 294 (attached as Exhibits 1 and 2). The injunction prevents federal officials from the White House and several federal agencies from โurging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms.โ Ex. 2, at 4.
The injunction is based on 82 pages of detailed factual findings supported by 577 citations of evidence in the record, which includes over 18,000 pages of federal officialsโ own documents and communications with social-media platforms, and six full-length depositions of senior federal officials with firsthand knowledge of federal censorship practices. In short, the judgment is based on overwhelming evidence drawn from federal officialsโ own mouths.
It was particularly fitting that the judgment issued on Independence Day, the day celebrating the Founding Fathersโ struggle for our freedom, to which they pledged their lives, their fortunes, and their sacred honor. This was fitting because the injunction protects and restores our very first freedomโthe freedom of speech under the First Amendmentโfrom what the Louisiana court aptly describes as โarguably โฆ the most massive attack against free speech in United Statesโ history.โ Ex. 1, at 2.
The U.S. Department of Justice filed an immediate appeal and an emergency application for stay pending appeal. The Court of Appeals did not grant that motion, but it entered a temporary administrative stay and ordered expedited briefing with oral argument on August 10. Contrary to some recent suggestions, entering a temporary administrative stay is โroutine practiceโ in the Fifth Circuit and does not reflect a prejudgment of the merits. See In re Abbott, 800 F. Appโx 296, 298 (5th Cir. 2020) (โEntering temporary administrative stays so that a panel may consider expedited briefing in emergency cases is a routine practice in our court.โ).
My testimony today reports on Judge Doughtyโs historic judgment and offers seven observations on his opinion and injunction.
I. Federal Officials Cause Political CensorshipโNot Platforms Acting on Their Own.
First, the censorship of viewpoints disfavored by federal officials on social media is not something that the platforms are doing simply on their own. In detailed factual findings, the Louisiana court found, again and again, that federal action causes the censorship of the speakers and viewpoints that federal officials disfavorโi.e., absent the action of federal officials, the platforms would not have censored them. See, e.g., Ex. 1, at 18, 19, 24, 29, 32, 25, 36, 65, 80, 81, 101, 107, 129-32. These findings rest on extensive, unrefuted evidence.
As the district court found, the Louisiana evidence abounds with examples where it is perfectly clear that federal officials induced the platforms to censor content that they would not have censored on their own. At the instigation of the White House, โFacebook reported the Tucker Carlson content had not violated Facebookโs policy, but Facebook gave the video a 50% demotion for seven days and stated that it would continue to demote the video.โ Id. at 19. With regards to the so-called โDisinformation Dozen,โ โ[t]he public and private pressure from the White House โฆ had its intended effect. All twelve members of the โDisinformation Dozenโ were censored, and pages, groups, and accounts linked to the Disinformation Dozen were removed.โ Id. at 24.
After months of resistance by platforms to federal demands, pressure and threats from the White House finally brought platforms to heel, and they ultimately became compliant โpartnersโ with federal officials in censorship. For example, Nick โClegg of Facebook reached out to attempt to request โde-escalationโ and โworking togetherโ instead of the public pressure. In the call between Clegg and Murthy, Murthy told Clegg he wanted Facebook to do more to censor misinformation on its platforms,โ id. at 29โand Facebook complied. โAfter the meetings with social-media platforms, the platforms seemingly fell in line with the Office of Surgeon Generalโs and White Houseโs requests. Facebook announced policy updates about censoring misinformation on May 27, 2021, two days after the meeting. As promised, Clegg provided an update on misinformation to the Office of Surgeon General on May 28, 2021, three days after the meeting and began sending bi-weekly COVID content reports on June 14, 2021.โ Id. at 32.
Facebook, in particular, stated that it wanted to โbetter understand the scope of what the White House expects of us on misinformation going forward,โ and promised to โwork together collaborativelyโ to meet the White Houseโs expectations: โOn July 16, 2021, Clegg emailed Murthy and stated, โI know our teams met today to better understand the scope of what the White House expects of us on misinformation going forwardโฆ. Iโm keen to find a way to deescalate and work together collaboratively. I am available to meet/speak whenever suits.โโ Id. at 35. โClegg even sent a follow-up email after the meeting to make sure Murthy saw the steps Facebook had been taking to adjust policies with respect to misinformation and to further address the โdisinfo-dozen.โ Clegg also reported that Facebook had โexpanded the group of false claims that we remove, to keep up with recent trends of misinformation that we are seeing.โ Further, Facebook also agreed to โdo moreโ to censor COVID misinformation.โ Id. at 36.
Federal agencies have enviable success rates in inducing platforms to remove disfavored speakers and content. After leveraging years of public and private pressure from federal officials and congressional staffers, โChan testified the FBI had about a 50% success rate in having alleged election disinformation taken down or censored by social-media platforms.โ Id. at 65. โ[T]he FBI had a 50% success rate regarding social mediaโs suppression of alleged misinformation.โ Id. at 107.
The CISA-launched โElection Integrity Partnershipโ (โEIPโ) also causes extensive censorship that platforms would not have imposed on their own. โThe EIP โฆ successfully pushed social-media platforms to adopt more restrictive policies about election-related speech in 2020.โ Id. at 80. It then employed those new policies aggressively to pressure platforms to remove potentially millions of social-media posts encompassing entire disfavored narratives: โIn the 2020 election cycle, the EIP processed 639 โtickets,โ 72% of which were related to delegitimizing the election results. Overall, social-media platforms took action on 35% of the URLs reported to them. One โticketโ could include an entire idea or narrative and was not always just one post. Less than 1% of the tickets related to โforeign interference.โโ Id. at 81 (emphasis added).
The district court aptly summarized this evidence: โThe White House Defendants made it very clear to social-media companies what they wanted suppressed and what they wanted amplified. Faced with unrelenting pressure from the most powerful office in the world, the social-media companies apparently complied.โ Id. at 101.
The Governmentโs principal defense is that platforms would have censored all this content on their own, but the Louisiana court held that โ[t]his argument is wholly unpersuasive. Unlike previous cases that left ample room to question whether public officialsโ calls for censorship were fairly traceable to the Government; the instant case paints a full picture. A drastic increase in censorship, deboosting, shadow-banning, and account suspensions directly coincided with Defendantsโ public calls for censorship and private demands for censorship.โ Id. at 130-31.
The district court also emphasized that there was an overarching campaign of threats, pressure, and demands from federal officials lasting over years, that effectively overwhelmed the platformsโ resistance:
Government officials began publicly threatening social-media companies with adverse legislation as early as 2018. In the wake of COVID-19 and the 2020 election, the threats intensified and became more direct. Around this same time, Defendants began having extensive contact with social-media companies via emails, phone calls, and in-person meetings. This contact, paired with the public threats and tense relations between the Biden administration and social-media companies, seemingly resulted in an efficient report-and-censor relationship between Defendants and social-media companies.
Id. at 131. This evidence shows โa causal and temporal linkโ between federal officialsโ threats and demands, and the platformsโ decisions to ramp up censorship of ordinary Americansโ speech. Id.
II. The Scope and Reach of Federal Censorship Are Staggering.
Second, the scope and reach of federal censorship are enormous. Federal censorship affects millions of speakers and posts on social media, and it affects virtually every American with a social-media account who follows discourse on social and political issues. As Louisiana held, the First Amendment protects, not just the right to speak, but the โright to listen.โ When federal officials silence a single influential speakerโsuch as Tucker Carlson or Robert F. Kennedy Jr.โthey violate the rights of hundreds of thousands or millions of potential listeners.
The district courtโs factual findings, based on extensive evidence, emphasize that federal censorship silences โmillionsโ of posts, speakers, and accounts on social media. Ex. 1, at 82, 94, 107, 123, 137-38. As the district court stated, โPlaintiffs have put forth ample evidence regarding extensive federal censorship that restricts the free flow of information on social-media platforms used by millions of Missourians and Louisianians, and very substantial segments of the populations of Missouri, Louisiana, and every other State.โ Id. at 123.
It is particularly chilling that, in certain instances, federal officials stifle the rights of โmillionsโ in a single stroke. The FBIโs deceptive campaign to induce platforms to suppress the Hunter Biden laptop story in 2020 provides a prime example. After reviewing extensive evidence, including the deposition testimony of FBI agent Elvis Chan, the Louisiana court found that the FBI was directly responsible for the censorship of the Hunter Biden laptop story on social media, affecting the First Amendment rights of โmillions of U.S. citizensโ at one blow:
The FBIโs failure to alert social-media companies that the Hunter Biden laptop story was real, and not mere Russian disinformation, is particularly troubling. The FBI had the laptop in their possession since December 2019 and had warned social-media companies to look out for a โhack and dumpโ operation by the Russians prior to the 2020 election. Even after Facebook specifically asked whether the Hunter Biden laptop story was Russian disinformation, [Laura] Dehmlow of the FBI refused to comment, resulting in the social-media companiesโ suppression of the story. As a result, millions of U.S. citizens did not hear the story prior to the November 3, 2020 election. Additionally, the FBI was included in Industry meetings and bilateral meetings, received and forwarded alleged misinformation to social-media companies, and actually misled social-media companies in regard to the Hunter Biden laptop story.
Id. at 107 (emphasis added).
The so-called โElection Integrity Partnershipโ and โVirality Projectโ (the same project by another name) also reflect the staggering scope of federal social-media censorship. The EIP and VP engage in mass-surveillance of social-media posts reflecting disfavored viewpoints in real-time, reviewing hundreds of millions of posts and censoring millions of them. As the district court found, โ[t]he tickets and URLs encompassed millions of social-media posts, with almost twenty-two million posts on Twitter alone.โ Id. at 82. As noted in my previous testimony:
The โElection Integrity Partnershipโ (EIP)โa censorship consortium of academics, think thanks, federal and state government officials, and social-media platformsโboasts that it surveilled 859 million Tweets, and tracked 21,897,364 Tweets on โticketsโ as โmisinformation,โ in 2020 alone. Again, that is one social-media platform in one election cycleโand the EIP deals with many platforms and appears to be active in every cycle. โฆ The โVirality Projectโโa mass-surveillance and censorship operation conducted by the same group as the EIPโboasts that it tracked content with about 6.7 million engagements on social media per week, or over 200 million over the Projectโs seven months.
Ex. 3, at 4 (emphasis in original).
This federal censorship campaign extends across the federal agencies affected by the Louisiana injunction. So great is the reach of the federal officials involved that they fundamentally distort online discourse on hotly disputed social and political questions for millions of Americans: โThey flagged posts and provided information on the type of posts they wanted suppressed. They also followed up with directives to the social-media companies to provide them with information as to action the company had taken with regard to the flagged post. This seemingly unrelenting pressure by Defendants had the intended result of suppressing millions of protected free speech postings by American citizens.โ Ex. 1, at 94 (emphasis added).
III. Federal Censorship Is Ongoing and Shows No Signs of Stopping on Its Own.
Some defenders of federal censorship have argued that it was a temporary measure, adopted solely to address the unique circumstances of COVID-19 and the 2020 election. This is demonstrably wrong. Federal censors show no inclination to relinquish their enormous power over online discourse. On the contrary, federal censorship efforts are continuing and expanding. The district court made numerous findings, based on extensive evidence, demonstrating the ongoing, expanding federal efforts in this area.
When the district court entered its injunction, federal censorship activity was still in full swing. The CDCโs โregular biweekly meetings with Googleโ on disinformation โcontinue[] to the present day.โ Ex. 1, at 46. The โUSG-Industryโ meetings on disinformation are โcontinuingโ and โwill continue through the 2024 election cycle.โ Id. at 60. The โbilateral meetings between FBI and [seven platforms] โฆ are continuingโ and โwill increase to monthly and weekly nearer the elections.โ Id. White House officials continued to badger platforms on censorship throughout 2022. Id. 26. โ[T]he FBI is continuing its efforts to report disinformation to social-media companies to evaluate for suppression and/or censorship.โ Id. 67. The FBIโs Elvis Chan says: โPost-2020, weโve never stopped.โ Id. at 67.
CISAโs โIndustryโ meetings to discuss disinformation with platforms โcontinue to this day,โ and โincrease in frequency as each election nears.โ Id. at 69. CISA still conducts โfive sets of recurring meetings with social-media platforms that involved discussions of misinformation, disinformation, and/or censorship of speech on social media.โ Id. 75. โCISA publicly states that it is expanding its efforts to fight disinformation-hacking in the 2024 election cycle.โ Id. at 76. This includes expanding its censorship efforts to new topics and viewpoints. Id. at 76. โCISA Director Easterly stated that CISA is โbeefing up its misinformation and disinformation team in wake of a diverse presidential election a proliferation of misleading information online.โ Easterly stated she was going to โgrow and strengthenโ CISAโs misinformation and disinformation team.โ
Id. at 77.
The Election Integrity Partnership โcontinued to operate during the 2022 election cycle,โ id. at 71, and states that it will โcontinue its work in future elections.โ Id. at 83.
These ongoing censorship activities present a grave, imminent, and continuing threat to speakers specifically targeted by federal censors. As the district court found, federal officials are โcurrently involved in an ongoing project that encourages and engages in censorship activities specifically targeting [Jim] Hoftโs website.โ Id. 127. โ[Jill] Hines, too, recounts past and ongoing censorship injuries, stating that her [pages] are constantly at risk of being completely de-platformed.โ Id. at 127-28. โ[Dr. Jayanta] Bhattacharya โฆ is the apparent victim of an ongoing โcampaignโ of social-media censorship, which indicates that he is likely to experience future acts of censorship.โ Id. at 127. โ[Dr. Martin] Kulldorffโs ongoing censorship experiences on his personal social-media accounts provide evidence of ongoing harm and support the expectation of imminent future harm.โ Id. โ[Dr. Aaron] Kheriaty also affirms ongoing and anticipated future injuries, noting that the issue of โshadow banningโ his social-media posts has intensified since 2022.โ Id. at 127. โ[Jill] Hines, too, recounts past and ongoing censorship injuries, stating that her personal Facebook page, as well as the pages of Health Freedom Louisiana and Reopen Louisiana, are constantly at risk of being completely de-platformed.โ Id. at 127-28. โAt the time of her declaration, Hinesโ personal Facebook account was under an ongoing ninety-day restriction. โฆ [T]he evidence supplied in support of the preliminary injunction strongly implies that these restrictions can be directly traced back to federal officials.โ Id. at 128.
Notably, when the court asked, โhow can I be sure that this is not going to happen again,โ Defendantsโ counsel answered, โit is not the governmentโs argument that โฆ this โฆ will never happen again.โ May 26, 2023 Tr., at 122:1-2, 7-8 (emphasis added). As the Louisiana court found, โit is certainly not imaginary or speculative to predict that Defendants could use their power over millions of people to suppress alternative views or moderate content they do not agree with in the upcoming 2024 national election.โ Ex. 1, at 142.
IV. Federal Officials Target Truthful Speech and the Most Influential Critics of the Administration and Its Policies.
The argument that federal censorship is a benign exercise that protects Americans from false and misleading information on social media is itself false and misleading. As the Louisiana court found, federal officials especially target truthful speech and the most influential critics of the Biden Administration, its policies, and its preferred narratives. Federal censorship targets specific speakersโespecially influential critics of the Administrationโs policies and those who organize political opposition to them, such as Tucker Carlson, Tomi Lahren, Sean Hannity, Robert F. Kennedy Jr., Fox News, Breitbart News, Alex Berenson, the so-called โDisinformation Dozen,โ Dr. Bhattacharya, Dr. Kulldorff, Dr. Kheriaty, Jill Hines, and Jim Hoftโamong many others. And it targets specific viewpointsโi.e., those questioning the political narratives most preferred by the federal officials pushing for censorship.
The targeted speakers include dozens of speakers that the district court specifically found that federal officials suppressed. See Ex. 1, at 17 (Robert F. Kennedy Jr. and Childrenโs Health Defense); id. at 17-18, 129 (Tucker Carlson and Tomi Lahren); id. at 19 (Alex Berenson); id. at 24 (the โDisinformation Dozenโ); id. at 63-64 (the New York Post); id. at 84-85 (โmedical freedomโ groups, which effectively organize political opposition to mask mandates, lockdowns, vaccine mandates, and similar policies); id. at 85-86 (One America News, Breitbart News, Alex Berenson, Tucker Carlson, Fox News, Candace Owens, The Daily Wire, RFK Jr., Simone Gold, Dr. Joseph Mercola, and others).
The Louisiana evidence makes clear that these speakers are suppressed precisely because they are effective in criticizing the Administrationโs policies and undermining the Administrationโs preferred narratives. โWhite House officials wanted to know why Alex Berenson โฆ had not been โkicked offโ Twitter,โ because White House officials viewed Berenson as โthe epicenter of disinfo that radiated outwards to the persuadable public.โโ Id. at 19. Despite his wide popularity, Berensonโs social-media account did not survive federal pressure: โBerenson was suspended thereafter on July 16, 2021, and was permanently de-platformed on August 28, 2021.โ Id.
Likewise, the so-called โDisinformation Dozenโ were targeted because White House officials viewed them as the source of 65 percent of vaccine-hesitancy content on social-media. Again, their wide reach could not save themโFacebook โfell in lineโ with White House demands and deplatformed the โDisinformation Dozenโ in response to White House pressure. Ex. 1, at 32.
Despite its claim to oppose โmisinformationโ and โdisinformation,โ federal censorship does not focus primarily on suppressing false information. On the contrary, the Louisiana evidence and the courtโs findings demonstrate that federal censors are particularly interested in suppressing truthful information that undercuts federal officialsโ policies and preferred narratives. Rob Flahertyโs incessant demands that Facebook, Instagram, WhatsApp, and other platforms crack down on so-called โborderlineโ content provide a perfect example of this. See Ex. 1, at 13-14, 20, 22-23, 99. โBorderlineโ content is typically truthful content that federal officials view as likely to undercut their preferred narratives. The White Houseโs hyper-focus on โborderlineโ content demonstrates that federal censorship does not focus on truth but on narrative control. Censorship is not about truth but about powerโspecifically, defending and expanding the power of those who wield the authority to censor.
Again, the Hunter Biden laptop story provides another prime example of this dynamic. The story was a truthful story that gravely threatened the power of powerful federal officials. Accordingly, it was relentlessly censored. The full authority of the FBI, at the organizationโs high echelons, orchestrated a deceptive campaign to deceive platforms into censoring the storyโas the Louisana court has now found, based on extensive evidence. Id. at 107.
The Louisiana courtโs findings contain many other examples. โAs an example, [CISA intern Alex] Zaheer, when switchboarding for CISA, forwarded supposed misinformation to CISAโs reporting system because the user had claimed โmail-in voting is insecureโ and that โconspiracy theories about election fraud are hard to discount.โโ Id. at 74. Such claims are not โfalseโ or โdisinformationโโthey are claims that undercut the federal censorsโ preferred narratives. The 2017 edition of the U.S. Department of Justiceโs Manual on the Federal Prosecution of Election Offenses states that โ[a]bsentee ballots are particularly susceptible to fraudulent abuse because, by definition, they are marked and cast outside the presence of election officials and the structured environment of a polling place.โ U.S. Depโt of Justice, Federal Prosecution of Election Offenses (8th ed. Dec. 2017), at 28-29. The Manual reports that โthe more common waysโ that election-fraud โcrimes are committed include โฆ [o]btaining and marking absentee ballots without the active input of the voters involved.โ Id. at 28. Raising such concerns was a mainstream view shared by the Carter- Baker Commission; the U.S. Supreme Court (in an opinion by Justice John Paul Stevens); writers for the New York Times, the Washington Post, MSNBC, and Slate; and the U.S. Department of Justice. Yet, in 2020, this view became unspeakable โdisinformationโ on social media not because it was false, but because it undercut the censorsโ preferred narrative that mail-in ballots are totally secure.
The Louisiana findings contain many other examples demonstrating that censorship is not about truth but about power over narratives. Dr. Kheriatyโs content โopposing COVID-19 lockdowns and vaccine mandatesโ was censored, Ex. 1, at 6; Jill Hinesโs criticism of the efficacy of Pfizer vaccines and โposts about the safety of masking and adverse events from vaccinations, including VAERS dataโ were censored, id. at 5; Jim Hoftโs posts about the efficacy of COVID vaccines, the security of voting by mail, and other election-security issues were censored, id. at 6; and so forth. The district court aptly summarized the effects of federal censorship:
Opposition to COVID-19 vaccines; opposition to COVID-19 masking and lockdowns; โฆ the lab-leak theory of COVID-19; opposition to the validity of the 2020 election; opposition to President Bidenโs policies; statements that the Hunter Biden laptop story was true; and opposition to policies of the government officials in power. All were suppressed.
Id. at 154. The key theme tying together all these strands of content silenced by federal censorship is โopposition to policies and narratives favored by government officials in power.โ Id.
V. Federal Officials Are Deeply Intertwined With the โCensorship-Industrial Complex.โ
My previous testimony highlighted the critical role of so-called โElection Integrity Partnershipโ and its COVID-related spin-off, the โVirality Project,โ in federal censorship activities. This massive censorship enterprise was launched by the federal national-security state, and it plays a key role in what other witnesses have described as the โCensorship-Industrial Complex.โ See Ex. 3, at 19-24.
The Louisiana judgment makes critical factual findings based on extensive evidence about the role of the federal government in the EIP/VP. The key takeaway: โCISA and the EIP were completely intertwined.โ Ex. 1, at 113. Thus, the federal national-security state is โcompletely intertwinedโ with a cutting-edge mass-surveillance and mass-censorship operation that is directly responsible for silencing millions of American voices on social media.
In Louisiana, Defendants argued that โthe EIP operated independently of any government agency.โ Id. at 111. As the Court noted, โ[t]he evidence shows otherwise.โ Id. The Court then recounted many of the points of overlap and entwinement between federal national-security officials and the EIP:
[T]he EIP was started when CISA interns came up with the idea; CISA connected the EIP with the CIS, which is a CISA-funded non-profit that channeled reports of misinformation from state and local government officials to social-media companies; CISA had meetings with Stanford Internet Observatory officials (a part of the EIP), and both agreed to โwork togetherโ; the EIP gave briefings to CISA; and the CIS (which CISA funds) oversaw the Multi-State Information Sharing and Analysis Center (โMS-ISACโ) and the Election Infrastructure Information Sharing and Analysis Center (โEI-ISACโ), both of which are organizations of state and local governments that report alleged election misinformation.
CISA directs state and local officials to CIS and connected the CIS with the EIP because they were working on the same mission and wanted to be sure they were all connected. CISA served as a mediating role between CIS and EIP to coordinate their efforts in reporting misinformation to social-media platforms, and there were direct email communications about reporting misinformation between EIP and CISA. Stamos and DiResta of the EIP also have roles in CISA on CISA advisory committees. EIP identifies CISA as a โpartner in government.โ The CIS coordinated with EIP regarding online misinformation. The EIP publication, โThe Long Fuse,โ states the EIP has a focus on election misinformation originating from โdomesticโ sources across the United States. EIP further stated that the primary repeat spreaders of false and misleading narratives were โverified blue-checked accounts belonging to partisan media outlets, social-media influencers, and political figures, including President Trump and his family.โ The EIP further disclosed it held its first meeting with CISA to present the EIP concept on July 9, 2020, and EIP was officially formed on July 26, 2020, โin consultation with CISA.โ The Government was listed as one of EIPโs Four Major Stakeholder Groups, which included CISA, the GEC, and ISAC.
Id. at 111-12.
The Court further found: โThe โpartnersโ were so successful with suppressing election disinformation, they later formed the Virality Project, to do the same thing with COVID-19 misinformation that the EIP was doing for election disinformation. CISA and the EIP were completely intertwined. Several emails from the switchboarding operation sent by intern Pierce Lowary show Lowary directly flagging posted content and sending it to social-media companies. Lowary identified himself as โworking for CISAโ on the emails.โ Id. at 112-13.
These points summarize five additional pages of factual findings describing the federal intertwinement with the Election Integrity Partnership and Virality Project. See id. at 70-75. None of this evidence is disputed; it is based on the sworn testimony of public officials like CISAโs Brian
Scully, the Office of Surgeon Generalโs Eric Waldo, the GECโs Daniel Kimmage, and the detailed public reports published by the EIP and VP themselves.
VI. Federal Officials Induce Platforms to Adopt More Restrictive Censorship Policies.
One key finding of the Louisiana court is that federal officials do not just demand the suppression of particular speakers and content. They also induce platforms to adopt more restrictive content-moderation policies, so that entire viewpoints that they disfavor will be censored in the future. Federal officials and their allies inject themselves into the process of formulating content-moderation policies at major platforms.
As the district court found, federal officials โpressured social-media companies to change their content-moderation policiesโ so that content disfavored by Defendants could be more quickly suppressed in the future. Ex. 1, at 110 (emphasis added). โDefendants did not just use public statements to coerce and/or encourage social-media platforms to suppress free speech, but rather used meetings, emails, phone calls, follow-up meetings, and the power of the government to pressure social-media platforms to change their policies and to suppress free speech.โ Id. at 119 (emphasis added).
The CISA-launched โElection Integrity Partnershipโ was particularly egregious on this point. It launched a deliberate strategy to influence and control online discourse about the 2020 election by pressuring platforms to change or adopt content-moderation policies affecting private Americansโ speech about electionsโi.e., core political speech at the heartland of First Amendment protection. As the Louisiana court found, the EIP โsuccessfully pushed social-media platforms to adopt more restrictive policies about election-related speech in 2020.โ Id. at 80. Similarly, as the Louisiana court found, โthe evidence shows that the CISA Defendants โฆ apparently encouraged and pressured social-media companies to change their content-moderation policies and flag disfavored content.โ Id. at 110. According to Elvis Chanโs sworn testimony, the FBI, likewise, badgered platforms to report on whether they had policies for suppressing โhacked materials,โ effectively inducing platforms to adopt such policiesโjust in time for them to be weaponized against the New York Post and its Hunter Biden laptop story.
VII. Federal Officials Fundamentally Distort Social-Media Discourse by Rendering Entire Viewpoints on Great Issues Unspeakable on Social Media.
In 2017โright as this federal โCensorship Enterpriseโ was beginningโthe Supreme Court issued a prescient warning: โ[T]he government-speech doctrine โฆ is susceptible to dangerous misuse,โ and it must be used with โgreat cautionโ to ensure that โgovernmentโ cannot โsilence or muffle the expression of disfavored viewpoints.โ Matal v. Tam, 582 U.S. 218, 235 (2017). That is exactly what the Louisiana court found, based on overwhelming evidenceโfederal officials are abusing their authority to โsilence or muffle the expression of disfavored viewpoints,โ and trying to cloak their abuse of power in the โgovernment-speech doctrine,โ claiming that it gives them a blank check to make whatever threats they want to demand that social-media platforms censor the viewpoints they dislike. As the Supreme Court recognizes in Matal, this approach turns the First Amendment on its head.
This federal censorship project is successfulโradically successful. It did not just target and silence individual speakersโthough it did that very effectively. It also rendered entire viewpoints on great social and political questions virtually unspeakable on social media:
Opposition to COVID-19 vaccines; opposition to COVID-19 masking and lockdowns; โฆ the lab-leak theory of COVID-19; opposition to the validity of the 2020 election; opposition to President Bidenโs policies; statements that the Hunter Biden laptop story was true; and opposition to policies of the government officials in power. All were suppressed.
Ex. 1, at 154. Federal censorship fundamentally transforms online discourse, in a profoundly unfair, biased, and anti-truth-seeking manner. It biases online conversations by rendering them effectively one-sided. In addition, as the Louisiana witnesses attest, it induces widespread self-censorship, as speakers avoid posting controversial opinions on social media to avoid suspension, deplatforming, and other consequences. Frank, candid, open discourse on many social, political, and scientific issues has become impossible on major social-media platforms, as a direct result of federal censorship. This situation is intolerable, and profoundly at odds with the vision of freedom reflected in the First Amendment.
One particularly perverse feature of such censorship is that it targets political organization to oppose the censorsโ preferred policies. Federally induced censorship does not just target speech criticizing the governmentโs policies. It also targets online political organization through Facebook groups and similar social-media efforts. To be clear, those with favored viewpoints are still allowed to organize political efforts freely on social media. Only those with disfavored viewpoints are shut down. Jill Hines, one of the Louisiana plaintiffs who organizes political opposition to lockdowns, mask mandates, and vaccine mandates through Health Freedom Louisiana, experiences this pernicious form of censorship to an acute degree. โ[B]ecause of the censorship, the reach of Health Freedom Louisiana was reduced from 1.4 million engagements per month to approximately 98,000โฆ. [T]wo of their Facebook groups, HFL Group and North Shore HFL, were de-platformed for posting content protected as free speech.โ Ex. 1, at 5-6.
Conclusion: Two Visions of Freedom
This struggle over federal censorship reflects two competing visions of freedom in America. First, as the Louisiana court emphasizes, CISA Director Jen Easterly aptly summarizes the federal officialsโ view: โShe โฆ stated, โWe live in a world where people talk about alternative facts, post-truth, which I think is really, really dangerous if people get to pick their own facts.โโ Ex. 1, at 77. She also stated, โ[W]eโre in the business of protecting critical infrastructure, and the most critical is our โcognitive infrastructure.โโ Id.
Thus, Easterlyโs viewโreflected in federal censorship activityโis that the American โpeopleโ cannot be trusted โto pick their own facts,โ and that the government should pick our facts for us. Id. She believes that the federal governmentโarmed with the weapons, authority, and the domestic surveillance capacity of the national-security stateโshould police our โcognitive infrastructure.โ Id. As the Louisiana court found, โcognitive infrastructureโ means that โthe CISA Defendants believe they had a mandate to control the process of acquiring knowledge.โ Id. at 110.
The U.S. Supreme Courtโs watershed First Amendment opinions express a radically different view of freedom. โIf there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.โ W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). โOur constitutional tradition stands against the idea that we need Oceaniaโs Ministry of Truth.โ United States v. Alvarez, 567 U.S. 709, 723 (2012) (plurality op.).
The Louisiana case is one part of a titanic struggle between these two visions of freedom. The former viewโthe view reflected in the actions of federal censorship agents like Jennifer Psaki, Rob Flaherty, Andy Slavitt, Dr. Vivek Murthy, Carol Crawford, Dr. Anthony Fauci, Jen Easterly, Matthew Masterson, Brian Scully, Alex Stamos, Rene DiResta, Kate Starbird, Elvis Chan, Laura Dehmlow, and a host of other federal censorsโis terrifying and tyrannical, and its power is expanding rapidly. But the latter view is the vision enshrined in the plain text of our Constitution and deeply engrained in our traditions of liberty. I am profoundly hopeful that this latter vision of freedom will prevail.
Dated: July 20, 2023 Signed: /s/ D. John Sauer