A Koch-Funded Lawfare Group Is Suing The Biden Admin To Protect Vaccine Skepticism

New Civil Liberties Alliance is back again.

A corporate-aligned litigation outfit with deep ties to right-wing petrochemical billionaire Charles Koch is once again suing key officials and agencies within the Biden administration for their alleged role in influencing content moderation decisions made by social media companies.  

The case, Dressen, et al. v. Flaherty, et al., centers around the administration’s efforts to get Americans vaccinated amid a global pandemic in the face of widespread misinformation online about the jabs. The COVID vaccines provide robust protection against severe illness and death, and reduce the odds of infection and long COVID, but like other vaccines, they do come with some small risks. Although most side effects are mild and self-resolving, in extremely rare instances, injuries are possible.

New Civil Liberties Alliance, a group that has been heavily funded by Koch and other powerful right-wing interests, is representing a number of allegedly vaccine-injured individuals who claim that they were victims of an “exhaustive crusade” by the government “against any message that might threaten—or even question—its agenda.” Specifically, they claim that as a result of coercion by the government, they had restrictions placed on their accounts on platforms like Facebook and TikTok for telling their stories in violation of their First Amendment rights. 

In addition to the administration defendants, the suit also names several individuals affiliated with Stanford University who were allegedly part of the “censorship enterprise.”

NCLA bills itself as a “nonpartisan, nonprofit civil rights group,” but the organization is best understood as a lawfare operation for corporate America. The group’s website boasts that it is “committed to cutting the Administrative State down to size by challenging the unlawful powers it uses to deny civil liberties.” Since its inception in 2017, NCLA has been waging strategic legal battles against policies that burden major business interests like Koch. For example, the group went after the Environmental Protection Agency’s ability to regulate greenhouse gas emissions. It has also filed strategic litigation against government efforts to respond to the pandemic, including going after the Centers for Disease Control and Prevention’s emergency eviction moratorium as well as the Occupational Safety and Health Administration’s vaccine-or-test mandate for large businesses.

With its latest legal effort, NCLA is aiming to cripple the federal government’s ability to address the spread of misinformation online and communicate with social media platforms—even in a major public health crisis.

“A Much Bigger Threat To Democracy Than Anything We’ve Seen”

Originally filed in May 2023, the Dressen case emerged from a larger, organized right-wing campaign to politicize public health science and sow distrust in government which has been ongoing since the early days of the COVID-19 pandemic. 

Business-aligned conservative groups, especially those in Koch’s sphere of influence, set to work painting viral mitigation measures as undue infringements on liberty while downplaying the seriousness of the virus itself. To that end, they have amplified fringe medical voices who advocated herd immunity through infection and cast doubt on the necessity, efficacy, and even safety of the vaccines.

As the pandemic fades from the public consciousness, however, even with COVID continuing to circulate and mutate, the larger political right—dark money groups, their operatives, and Republican politician allies—has pivoted to rewriting history in order to validate the contrarian positions they embraced. To this day, Americans remain largely supportive of mitigation measures taken early on to control the spread of the virus, which is hardly surprising considering that the U.S. was hit significantly harder than its peer nations with 1.2 million COVID deaths—many preventable, attributable to widespread vaccine hesitancy—and millions more suffering long COVID.

Those on the political right, however, have settled on narrative that their side was suppressed by bad actors in government, academia, media, and Big Tech rather than its simply rejected on the merits of their ideas. Far-right billionaire Elon Musk poured fuel on the fire. A vocal opponent of COVID mitigation measures and prolific pandemic minimizer despite having used the virus as justification for avoiding an in-person deposition in October 2022, Musk released internal documents from Twitter upon purchasing the company to select writers and journalists. While the so-called “Twitter Files,” published between December 2022 to March 2023, actually showed how the company resisted pressure from both the Trump and Biden administrations to moderate content on its platform. Nevertheless, the reports have become a rallying cry on the online right, held up as irrefutable proof of anti-conservative censorship.

The narrative has since percolated into academia. Last month, a number of operatives from Koch-linked groups participated in a health policy symposium put on by Johns Hopkins University’s Carey Business School that included a panel on “free speech in medicine.” A similar conference is set to take place at Stanford University on Friday, which will include a discussion about “misinformation, censorship, and academic freedom” featuring of the NCLA attorneys for the Dressen case, Jenin Younes.

Younes herself has been an outspoken critic of government efforts to control the spread of COVID and has even dabbled in anti-vaccine talking points. For example, in April 2021, she tweeted that “the covid vaccines are in an experimental phase and we cannot know their longterm effects.” In August 2022, she implied that the mRNA COVID vaccines may be linked to blood clots despite research indicating they are not, and claimed that boosters conferred “no benefit” to college-age young people. 

To date, the highest profile mention of the right-wing suppression narrative came at Tuesday’s vice presidential debate. In his refusal to acknowledge that Donald Trump lost the 2020 election, Sen. JD Vance (R-OH) declared that “the threat of censorship,” including “big technology companies silencing their fellow citizens” and government efforts to combat misinformation, was “a much bigger threat to democracy than anything we’ve seen in this country.” Vance cited the COVID pandemic as a period of great supposed censorship.

“A Follow Up On Murthy v. Missouri”

NCLA has been a major driver of the “suppression” narrative. Dressen is not the first time the group has waged a legal battle against the Biden administration for allegedly violating the First Amendment by strong-arming social media companies as part of its efforts to combat misinformation related to the pandemic and other topics.

Before Dressen came Murthy v. Missouri, which was originally filed in May 2022 as Missouri v. Biden by two Republican attorneys general. NCLA joined the suit in August that year with Younes representing a group of private plaintiffs that included several contrarian doctors who were popular on the political right for minimizing the dangers of the SARS-CoV-2 virus. NCLA argued that their clients’ content on platforms like Twitter had been flagged as misinformation and restricted as a result of improper government pressure.

This past June, the Supreme Court threw out the lawsuit over issues of standing in a 6-3 ruling led by conservative Justice Amy Coney Barrett. The Court held that the plaintiffs had failed to demonstrate a “concrete link” between the government’s actions and the content restrictions they faced online. In the wake of the defeat, Younes vowed to fight on.

Dressen appears to be the continuation of that fight. An amended complaint in the case was filed earlier this month, just weeks after Meta founder Mark Zuckerberg sent a letter to Rep. Jim Jordan (R-OH), who Younes at one point worked for, outlining the pressure his company had faced from the Biden administration to moderate COVID-19 content on its platform. 

Many of the named government defendants in Dressen were also named in the original Missouri v. Biden complaint, and the claims in the two cases—namely that the government was “policing” speech online and coercing private companies into censoring “disfavored” viewpoints—mirror each other. At the heart of both lawsuits is a view of the First Amendment that prohibits the federal government from playing any role in “picking winners and losers in the marketplace of ideas,” as the amended Dressen complaint puts it. 

“It really is a follow up on Murthy v. Missouri,” said Dorit Reiss, a professor of law at UCSF with expertise in the legal issues around vaccines. “Since the court in that case rejected the case on standing, this is one of a few cases trying to get around that by presenting a standing argument that matches what the Murthy court required.”

Resists told Important Context, “This case, on first glance, does a better job on the timing,” explaining that unlike in the Murthy case, the Dressen plaintiffs took care to claim that changes to their online accounts occurred after the Biden administration started interacting with platforms. Still, she said, the new suit “has its own issues.” 

Reiss pointed out, for example, that the case “builds on the Murthy record, but although it mentions Facebook, it opens with two examples from GoFundMe and TikTok—for which there is no such evidence of connection in the Murthy litigation.” She also noted that the plaintiffs would likely have to connect specific censorship acts to the government, which the complaint does not do. 

“They might say that they have pleaded enough to get to discovery, and a sympathetic judge will let them—I think that's what happened with Murthy when it was Missouri v. Biden,” she said. “And most judges would not have let that get to discovery,” Reiss said.

Indeed, on its way to defeat at the Supreme Court, Murthy went through the U.S. District Court for the Western District of Louisiana where it was presided over by Judge Terry Doughty, a Trump appointee who issued a sweeping injunction against the administration. From there, the case went to the notoriously conservative Fifth Circuit Court of Appeals, also stacked with Trump appointees. While the appellate court limited the injunction, it still found that the government had likely violated the First Amendment. Dressen is poised to follow a similar trajectory, filed in the United States District Court for the Southern District of Texas where it is being heard by Trump-appointed Judge Jeff Brown. Should the case be appealed, it will also head to the Fifth Circuit.

“Misapplied The Facts In This Case”

NCLA’s choice of venue in Dressen could insulate the case from potential legal hurdles beyond just standing that it shares with its predecessor, Murthy.

The Dressen complaint lists the ways in which the government defendants allegedly pressured social media companies using “threats of adverse government action, including threats of increased regulation, antitrust enforcement or legislation, and repeal or amendment of Section 230 CDA immunity.” But none of the named defendants in Dressen has direct authority to make good on any of those threats. For example, new legislation would require an act of Congress.

Reiss, however, told Important Context that the appellate court would not let that issue hold up the suit.

“This was raised in Missouri v. Biden and rejected by the Fifth Circuit,” she explained, noting that “the White House has a lot of influence on agencies, including independent agencies, and a role in regulation and plaintiffs would argue this is enough to make the threat meaningful.”

Separately, there is the issue of government speech rights. Discussing the original Missouri complaint in November 2022, Burt Neuborne, the Norman Dorsen Professor of Civil Liberties emeritus and founding legal director of the Brennan Center for Justice at New York University Law School, explained that it is not “unlawful for the government to express its views about the factual correctness or incorrectness of a given statement, and to urge private speakers to refrain from disseminating false information.”

The government speech doctrine, Neuborne said, “also protects the government’s right to criticize the manner in which a social media platform is carrying out its 230 responsibilities, and consider whether 230 should be amended or abolished.”

But Reiss noted that the Fifth Circuit in the Missouri case had found that the government likely went beyond mere persuasion into coercion—a decision she believes was made incorrectly.

“There's already been a line of cases that government cannot coerce private actors on speech…and the question when it's coercion v. persuasion is determined by a multi factor, somewhat vague standard,” she explained. “The standard is not in question; but the Fifth Circuit likely misapplied it to the facts in this case.”

“Inconsistencies To The Medically Trained Reader”

Legal arguments aside, the plaintiffs’ claims of vaccine injury in Dressen raise significant medical questions, experts told Important Context upon reviewing the amended complaint. None of the experts have treated the allegedly vaccine-injured parties mentioned in the lawsuit.

Dr. Frank Han, an adult congenital and pediatric cardiologist, cautioned that it is difficult to determine actual vaccine injury events as symptoms can be consistent with other conditions.

“While it is possible to share empathy for the severe symptoms these people went through, documenting the medical evidence supporting a vaccine associated adverse event is a meticulous process with some gaps in scientific understanding of the full mechanism of how these events occur,” Han said. “The lawsuit as presented is meant for a legal audience, but contains enough inconsistencies to the medically trained reader that questions can be raised about the robustness of the association between vaccine and described side effects.”

Han flagged the account of plaintiff Ernest Ramirez, who blames the Pfizer-BioNTech mRNA COVID vaccine for the loss of his teenage son. Ernest Ramirez Jr. died days after receiving his first dose of the vaccine, and the autopsy reportedly revealed that he had an enlarged heart. Han, however, said he doubted that the jab was the culprit.

“[Ramirez] claims the heart was big on autopsy, which is typically consistent with a genetic dilated cardiomyopathy which ordinarily receives genetic testing prior to it getting bad,” Han said, adding that “while the autopsy findings were consistent with myocarditis and the timeline of events was possibly consistent with missed myocarditis, the heart doesn't dilate and get big in 5 days, it takes time for the immune system to do that.”

Dr. Jonathan Howard, director of neurology service Bellevue Hospital and a neurology professor at New York University, was similarly skeptical of the plaintiffs’ vaccine injury claims.

“In medicine, we can never say for sure that the vaccine was not to blame, however I think it is unlikely,” he said. “This does not mean that the plaintiffs are lying or not suffering.”

In an email, Howard outlined several “reasons to be skeptical,” including the fact that the plaintiffs’ symptoms “are so diverse and varied,” noting, for example, that ”one person complained of ‘autotomic dysfunction, gastrointestinal problems, irregular heart rate, painful paresthesia, heart and blood pressure fluctuations, brain fog, and severe limb weakness and loss of bladder control.’”

“If I were an evil doctor and wanted to cause those symptoms in someone, it would take intentional poisoning,” he said.

Howard also pointed out that the plaintiffs’ symptoms have been long-lasting while “nearly all vaccine-injuries are transient” and that they “happened immediately after vaccination. “Catastrophic, long-term vaccine-injuries don't happen within minutes,” he said.

The complaint states that some of the plaintiffs have had doctors attest to their vaccine injuries after examining them. At least one case, however, appears to be an overstatement of the facts. The complaint alleges that the National Institutes of Health “confirmed” that plaintiff Brianne Dressen “had suffered Covid vaccine-induced medical conditions.” A former preschool teacher who now serves as co-chair of the vaccine injury group React 19, Dressen did indeed participate in a small-scale study of potential—and rare—vaccine injuries conducted by NIH researchers. However, that study did not conclude whether the jabs themselves caused the participants’ symptoms or how they would have done so. 

Big Money

Despite any potential problems with Dressen, NCLA has the resources to keep the fight going against government efforts to combat online misinformation. The group is heavily tied to billionaire industrialist Koch. Its president and chief legal officer, Mark Chenoweth, is even a former in-house counsel for Koch Industries, the family business of which Charles and his now deceased brother David were the primary owners.

Over the years, Koch family foundations have showered NCLA with money. From its inception in 2017 to 2022, the group got $3 million from the Charles Koch Foundation. Stand Together Fellowships, formerly known as the Charles Koch Institute, gave it $2 million between 2020 and 2021. Stand Together Trust, another Koch family group, gave $1 million in 2022. DonorsTrust, meanwhile, a donor-advised fund preferred by Koch network donors, has funneled $5 million to the organization between 2018 and 2022.

NCLA has other major corporate-aligned backers as well. The 85 Fund, the funding group of Trump judicial adviser and legal activist Leonard Leo, who has helped stack the judiciary with far-right judges, gave $1 million in 2020. Major right-wing funding organizations tied to wealthy families have also funneled millions to the group. The Lynne and Harry Bradley Foundation, the Sarah Scaife Foundation, and the Searle Freedom Trust gave $1.2 million, $1.5 million, and $1.6 million respectively from 2018 to 2022.