Judge Preliminarily Blocks Missouri AG’s Enforcement of AG’s Investigative Demand Against Media Matters
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 journali
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