A U.S. district judge in Louisiana who was already presiding over three key free speech cases will now also preside over a lawsuit brought by Children’s Health Defense (CHD) against several of the world’s largest news organizations.
The lawsuit, filed Wednesday in the U.S. District Court for the Western District of Louisiana, Monroe Division, alleges members of the Trusted News Initiative (TNI) violated antitrust laws and the U.S. Constitution when they collectively colluded with tech giants to censor online news.
TNI is a self-described “industry partnership” launched in March 2020 by several of the world’s largest news organizations, including the BBC, The Associated Press (AP), Reuters and The Washington Post — all of which are named as defendants in the lawsuit.
The case is now before U.S. District Judge Terry Doughty.
Jed Rubenfeld, lead attorney for the plaintiffs, told The Defender:
“When social media companies collude with government to censor critics of government policy, that violates the First Amendment.
“When they collude with major mainstream news organizations to censor rival online news publishers, that violates antitrust law.
“As the Supreme Court said in an antitrust case almost 80 years ago, ‘the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public. … Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not.'”
Multiple free speech, censorship cases now pending in Louisiana
In addition to the CHD lawsuit filed Wednesday, Judge Doughty is overseeing three other cases involving censorship, including another CHD lawsuit — a class action complaint filed March 24 against President Biden, Dr. Anthony Fauci and other top administration officials and federal agencies. The suit alleges the defendants “waged a systematic, concerted campaign” to compel the nation’s three largest social media companies to censor constitutionally protected speech.
The other two cases are Missouri v. Biden and Hines et al v. Stamos.
Missouri v. Biden was filed earlier this year by Missouri Attorney General Eric Schmitt and Louisiana Attorney General Jeffrey Landry alleging the Biden administration colluded with Twitter, Meta (Facebook’s parent company), Youtube, Instagram and LinkedIn to censor certain viewpoints under the guise of preventing the circulation of “misinformation” or “disinformation.”
The case, amended last month, also is now a class action lawsuit.
Hines et al v. Stamos was filed last month by Jill Hines, co-director of Health Freedom Louisiana, and Jim Hoft, founder of the Gateway Pundit, against the organizations and individuals behind the Election Integrity Partnership and the Virality project, alleging they colluded with government actors to monitor and censor speech on social media in violation of the First Amendment rights of millions of Americans.
The first three cases before the court allege governmental actors were involved in censorship decisions by social media and therefore their censorship violates the First Amendment.
The case filed Wednesday by CHD also raises key issues around free speech but additionally argues that the BBC, Washington Post, Reuters and the Associated Press colluded with each other and with social media platforms to target rival news publishers, in violation of the Sherman Antitrust Act.
CHD suit initially filed in Texas
Robert F. Kennedy Jr., CHD chairman on leave, and several other plaintiffs initially sued TNI members in January, in the U.S. District Court, Northern District of Texas, Amarillo Division.
The defendants moved for a change of venue and on May 12, Judge Matthew J. Kacsmaryk mistakenly transferred the case, Rubenfeld told The Defender.
Because Judge Kacsmaryk’s scheduling order had given the plaintiffs until June 18 to file their brief in opposition to the transfer, the May 12 transfer was premature, Rebenfeld said, and it deprived plaintiffs of the opportunity to articulate their strong arguments against the transfer.
As a result, the plaintiffs voluntarily withdrew the case.
Plaintiffs in the lawsuit filed Wednesday in Louisiana include CHD, Creative Destruction Media, Trial Site News, Ty and Charlene Bollinger (founders of The Truth About Cancer and The Truth About Vaccines), independent journalist Ben Swann, Erin Elizabeth Finn (publisher of Health Nut News), Jim Hoft (founder of The Gateway Pundit), Dr. Joseph Mercola, Jeff Crouere (host of “Ringside Politics,” the Louisiana-based radio and television show) and Ben Tapper, a chiropractor.
“Since Judge Doughty was already looking at three cases raising similar issues and knows more about this subject matter than any other judge in the country, it was appropriate to bring the case before him,” Rubenfeld said.
Kennedy, a plaintiff in the lawsuit filed in January against TNI, is not a plaintiff in the suit filed Wednesday, but is acting as volunteer legal counsel for CHD.
TNI censors legitimate, accurate reporting ‘to protect their own financial interests’
All of the plaintiffs in the CHD case against TNI allege they were censored, banned, de-platformed, shadow banned or otherwise penalized by the Big Tech firms partnering with the TNI, because the views and content they published were deemed “misinformation” or “disinformation.”
This resulted in a major loss of visibility and revenue for the plaintiffs, they allege.
According to the complaint, Big Tech firms, having partnered with the TNI, based their decisions on determinations jointly made by TNI, which touted its “early warning system” by which each partner organization is “warned” about an individual or outlet that is disseminating purported “misinformation.”
The TNI’s legacy media and Big Tech firms then acted in concert — described in legal terms as a “group boycott” — to remove such voices and perspectives from their platforms. This forms the basis of the lawsuit’s antitrust claims.
Alleging per se and “rule of reason” violations of the Sherman Antitrust Act on the basis of direct and circumstantial evidence of horizontal agreement and economic collusion among the defendants and Big Tech firms, the plaintiffs are requesting a jury trial and treble damages.
They also are requesting orders declaring the defendants’ conduct unlawful and enjoining further such actions on their part.
Commenting on the significance of the case, Kim Mack Rosenberg, acting outside general counsel for CHD, told The Defender:
“This case is critically important in highlighting the activities of those legacy media behemoths who banded together in the ‘Trusted News Initiative’ to censor competitors publishing information contrary to TNI members’ reporting on critically important issues, such as COVID-19 and US politics.
“Instead of the ‘truth police’ they purport to be, TNI members in fact censor legitimate and accurate reporting in order to protect their own financial interests. Further, the TNI members deprive the public of critically important information…
“People are losing faith in the legacy media and legacy media — rather than reflecting on their shortcomings and making changes — instead, through TNI, doubled down to protect their own economic interests.”
TNI targeted ‘disinformation’ about COVID and 2020 election
Core partners of TNI’s “coalition of the willing” include the AP, Agence France Press, the BBC, CBC/Radio-Canada, the European Broadcasting Union (EBU), the Financial Times, First Draft, Google/YouTube, The Hindu, The Nation Media Group, Meta, Microsoft, Reuters, the Reuters Institute for the Study of Journalism, Twitter and The Washington Post.
These partners collaborate, according to TNI’s website, “to tackle harmful disinformation in real time.”
According to the lawsuit:
“By their own admission, members of the ‘Trusted News Initiative’ (‘TNI’) have agreed to work together, and have in fact worked together, to exclude from the world’s dominant internet platforms rival news publishers who engage in reporting that challenges and competes with TNI members’ reporting on certain issues relating to COVID-19 and U.S. politics.”
Such coordination, the lawsuit alleges, is “an antitrust action,” known as a “group boycott” — an intentional attempt by a group of competitors to disadvantage other competitors by cutting off access to a “facility or market necessary to enable the boycotted firm[s] to compete.”
The lawsuit provides extensive evidence of this action, outlined in detail in a previous Defender article, including public statements by TNI partners.
For example, the complaint includes a March 2022 statement by Jamie Angus, then-senior news controller for BBC News, who explained TNI’s “strategy to beat disinformation” where he said the rivalry legacy media organizations face is less between one another and more:
“…between all trusted news providers and a tidal wave of unchecked [reporting] that’s being piped out mainly through digital platforms . … That’s the real competition now in the digital media world.
“Of course, organizations will always compete against one another for audiences. But the existential threat I think is that overall breakdown in trust, so that trusted news organizations lose in the long term if audiences just abandon the idea of a relationship of trust with news organizations. So actually we’ve got a lot more to hold us together than we have to work in competition with one another.”
The lawsuit alleges this quote demonstrates evidence of anti-competitive collusion and of TNI members’ economic motivation to stifle this “threat”: “a paradigmatic antitrust violation … to cut off from the market upstart rivals threatening their business model.”
The lawsuit also notes, for instance, that “TNI members agreed in early 2020 that their ‘ground-breaking collaboration’ would target online news relating to COVID-19 and that TNI members would ‘work together to … ensure [that] harmful disinformation myths are stopped in their tracks’” and “jointly [combat] fraud and misinformation about the virus.”
In July 2020, the lawsuit states, “TNI ‘extended’ its collaboration to cover so-called ‘disinformation’ about the United States presidential election,” stating it was “committed to a shared early warning system of rapid alerts to combat the spread of disinformation during the U.S. presidential election.
The actions taken by TNI to boycott these alternative media organizations meant these groups were “censored, de-monetized, demoted, throttled, shadow-banned, and/or excluded entirely from platforms like Facebook, YouTube, Twitter and Instagram.”
They effectively suppressed competition in the online news market and also deprived the public of key information on important matters, the lawsuit alleges.
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