An excerpt from Media Matters for America v. Bailey, decided Friday by Judge Amit Mehta (D.D.C.); read the full opinion for more:
On November 16, 2023, Plaintiff Media Matters for America, Inc., a District of Columbia-based media company, published an article authored by Plaintiff Eric Hananoki reporting that advertisements for several major corporations were appearing next to extremist content on X.com ("November 16 Article"). Defendant Texas Attorney General Ken Paxton served a Civil Investigative Demand ("Texas CID") on Media Matters shortly thereafter, seeking a host of records concerning Media Matters' reporting and operations. Plaintiffs filed suit against Defendant Paxton in January 2024, asserting a Section 1983 claim for retaliation in violation of the First Amendment and seeking to enjoin enforcement of the Texas CID. The court granted Plaintiffs' motion for a preliminary injunction on April 12, 2024, finding that Plaintiffs were likely to succeed in establishing jurisdiction over Paxton and on the merits of their claim.
Meanwhile, on March 25, 2024, Defendant Andrew Bailey, the Attorney General for the State of Missouri, served his own Civil Investigative Demand ("Missouri CID") on Media Matters with a return date of April 15, 2024. The Missouri CID sought nearly the same records as the Texas CID. On the same day Defendant Bailey served the CID, he preemptively filed an enforcement petition in Missouri state court, claiming that an immediate enforcement action was needed because Media Matters had resisted the Texas CID.
The court issued a preliminary injunction against AG Bailey's actions:
To prevail on their First Amendment retaliation claim, a plaintiff must show "(1) [they] engaged in conduct protected under the First Amendment; (2) the defendant took some retaliatory action sufficient to deter a person of ordinary firmness in plaintiff's position from speaking again; and (3) a causal link between the exercise of a constitutional right and the adverse action taken against [them]." …
In his opposition brief and motion, Defendant did not challenge that Media Matters' reporting is heartland First Amendment protected expression. In fact, at oral argument, he acknowledged that Media Matters is a "media company" and that "core First Amendment protections would apply to [it]."
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." … [But] Plaintiffs have likely shown that their reporting was not defamatory and therefore was protected speech under New York Times v. Sullivan. 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." 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. 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. These other stories corroborate Hananoki's reporting and Plaintiffs' belief in its accuracy.
The only contrary evidence that Defendant offers are (1) the purportedly "credible" allegations made by X in the suit it filed against Media Matters, and (2) a statement from the online brand safety organization, DoubleVerify, published on April 15, 2024, weeks after Defendant Bailey issued the Missouri CID and filed the Petition. According to DoubleVerify, X's Brand Safety Rate—"a measure of how frequently ads appeared adjacent to content that met advertiser-approved criteria"—was 99.9% from October 24, 2023, to March 14, 2024. But this limited evidence—lawsuit allegations not independently confirmed and an article that is not specific to Media Matters' reporting—does not provide reason to suspect that Hananoki's story on X was false or that Plaintiffs acted with actual malice. Defendant's evidence thus does not undermine the likelihood of Plaintiffs proving their reporting was protected by the First Amendment….
Next, the court holds that Plaintiffs have demonstrated a likelihood of success on element two—that Defendant engaged in "retaliatory action[s] sufficient to deter a person of ordinary firmness in [Plaintiffs'] position from speaking again[.]"
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. 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.
Further, Plaintiffs' "actual response" demonstrates the chilling effects of Defendant Bailey's conduct. 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." He continues to limit his communications with other journalists and his editor, and self-censors research and writing on X. 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." 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. "[E]xtreme[ ] caution[ ]" remains pervasive within the organization.
Defendant does not dispute that Plaintiffs' actions would objectively "deter a [journalist or media organization] of ordinary firmness in plaintiff's position from speaking again." Instead, he questions whether Media Matters' expression has in fact been chilled. He cites one story by Media Matters published post-March 25, 2024, that is critical of him and at least 20 articles about Elon Musk that ran after the November 16 Article. But as did Defendant Paxton, Defendant Bailey "asks too much of Plaintiffs. They need not show that the government action led them to stop speaking altogether, only that it would be likely to deter a person of ordinary firmness from the exercise of First Amendment rights." Thus, the fact that Media Matters has continued to publish some related stories—although none specifically identified about extremist content or advertising on X—does not mean Plaintiffs' expression has not been sufficiently chilled….
Defendant Bailey devotes most of his attention to the third element: the causal link between Media Matters' protected speech and his issuance of the CID and filing of the Petition…. For three reasons, the court concludes that Plaintiffs are likely to succeed in proving this element.
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. In response, Stephen Miller tweeted, "Fraud is both a civil and criminal violation. There are 2 dozen+ conservative state Attorneys General." 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. 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[ ]." He also claimed Media Matters had acted to "wipe out free speech." 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." 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.
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." (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.
Second, there is evidence from which a neutral factfinder likely would find that Defendant Bailey's proffered nonretaliatory explanation for the investigation of Media Matters is pretext. In his public announcement, Defendant stated that his investigation of Media Matters related to "its allegedly fraudulent solicitation of donations from Missourians amidst its efforts to target X[.]"In the Petition, he said that his investigation centered on Media Matters' "use of fraud to solicit donations from Missourians in order to trick advertisers into removing their advertising from X … one of the last platforms dedicated to free speech in America," in violation of Section 407.020 of the MMPA. The evidence that these explanations are a pretext for retaliation is strong.
According to a declaration submitted by Missouri Assistant Attorney General Steven Reed, in November 2023, the Attorney General "discovered that Media Matters was credibly accused of defaming the social media platform X … by falsely representing that X routinely populates advertisements for brands like Apple, IBM, and Xfinity next to extremist, fringe content.". Those "credible allegations," according to Reed, were based on a lawsuit filed by X against Media Matters in the Northern District of Texas, challenging the truthfulness of its reporting. Reed does not say that his office independently sought to substantiate these allegations. Rather, he points to an article published by an online brand safety organization, DoubleVerify, on April 15, 2024, weeks after Defendant Bailey issued the Missouri CID and filed the Petition. According to that article, X's Brand Safety Rate—"a measure of how frequently ads appeared adjacent to content that met advertiser-approved criteria"—was 99.9% from October 24, 2023, to March 14, 2024. This evidence, according to Reed, was indicative of "potential violations of the Missouri Merchandising Practices Act."
But that logic is difficult to follow. 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.". 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.
Defendant submitted a second declaration from Reed with his reply brief that sought to bolster the bona fides of his investigation. In that declaration, Reed averred for the first time that the Attorney General's Office "has come into possession of internal Media Matters documents that are expressly marked not for circulation and which reveal plans by the organization to use solicited funds for activities contrary to those publicly disclosed to its Missouri donors." The court has reviewed the documents. 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. 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.
According to Reed, the materials are at odds with Media Matters' public representations about its operations. He says that Media Matters uses funds "not just to issue reports about perceived misinformation, but to actively interfere with and neutralize the operational infrastructure of certain 'target' companies." Reed continues, "these documents reveal that Media Matters has entered into partnerships with Facebook and Google—competitors of X—and has developed strategic plans to interfere with the infrastructure systems used by 'target' companies to display advertisements." Reed apparently is referring to that portion of the strategy document that states, "[k]ey right-wing targets will see their influence diminish as a result of our work," and Media Matters will work with "[i]nternet and social media platforms, like Google and Facebook," "to stem the flow of damaging fake news on its platform's pages. Google will cut off these pages' accompanying sites' access to revenue by pulling their access to Google's ad platform." "These materials," Reed states, "are in tension with the organization's public comments and solicitations to Missourians and suggest that Media Matters is likely using solicited donations for activities in conflict with the explicit purposes disclosed to donors."
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. 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 then-Twitter, 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. 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." 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.
Third, a reasonable factfinder is likely to view Defendant Bailey's unorthodox approach to enforcing the CID as further proof of retaliatory intent. Defendant Bailey mailed the Missouri CID on the same day that he filed an enforcement action in Missouri state court. 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. Defendant's assertion that Media Matters "will fail" to comply was based on its earlier lawful filing of this suit against Defendant Paxton. 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[.]"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. Defendant's filing of a preemptive suit not authorized by Missouri law is evidence of retaliatory intent.
Defendant's strategic amendment of the Petition supplies even more proof of pretext. [Procedural details omitted. -EV] …
The court does not discard lightly the presumption of regularity generally afforded to prosecutorial decision-making. "But it falls on the judiciary to ensure that the First Amendment is not reduced to a parchment promise." And "the most heinous act in which a democratic government can engage is to use its law enforcement machinery for political ends." That apparently is what has occurred here.
On this record, the court finds that Plaintiffs are likely to succeed in proving a but-for causal linkage between their protected First Amendment activities, Defendant's decision to issue and enforce the Missouri CID, and Plaintiffs' chilled expression….
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