Trump’s worst judge is now a dangerous threat to press freedom

Protesters hold up signs against the vaccine mandate.
New York City employees protest Mayor de Blasio’s coronavirus vaccination mandate for all municipal workers on October 25, 2021. | New York Daily News/Tribune News Service via Getty Images

An unhinged case brought by anti-vaxxers will be heard by one of the biggest reactionaries in the federal judiciary.

The plaintiffs in Children’s Health Defense v. Washington Post are an array of Covid conspiracy theorists, anti-vaxxers, and disgraced media figures who preach the gospel of ivermectin.

They target four of the world’s leading media institutions — the Washington Post, the BBC, the Associated Press, and Reuters — claiming that these institutions violated federal antitrust law by conspiring with major tech companies to suppress many of the plaintiffs’ business. That is, the business of spreading highly dubious claims about a disease that killed more than a million Americans.

In case there’s any doubt, these plaintiffs’ claims are meritless. It is not illegal for media companies to work together to promote public health — or to work together in myriad other ways — so long as the purpose of that collective effort is to advance social or political goals, as opposed to economic goals such as eliminating competitors.

But the case will be heard by a judge who has spent his brief career on the bench acting like a rubber stamp for reactionary grievances: Trump appointee Matthew Kacsmaryk.

Kacsmaryk is a longtime anti-sex crusader and former attorney for a Christian right law firm in Texas. Since then-President Donald Trump appointed him to the federal bench, however, Kacsmaryk has become one of the most powerful allies of reactionary causes in the United States. Indeed, he’s become one of the most consequential public officials in modern-day America largely due to a rule that automatically assigns every federal lawsuit filed in Amarillo, Texas, to him.

Accordingly, far-right plaintiffs have spent the Biden administration making pilgrimages to Amarillo to beg policy favors from Kacsmaryk — favors that Kacsmaryk has thus far been more than happy to grant. In less than four years on the bench, he has inserted himself into the Biden administration’s foreign policy. He’s tried to nullify federal legal protections prohibiting health providers from discriminating against LGBTQ patients. He’s attacked the right to contraception. And he’s currently hearing a case attempting to force the Food and Drug Administration to withdraw its 23-year-old approval of mifepristone, a drug that is used in about half of all abortions.

And now it’s the anti-vaxxer right’s turn to make the trip to Amarillo, where Kacsmaryk has the chance not only to give the federal judiciary’s blessing to some of the worst Covid-related conspiracy theories, but also to order media companies that Republicans love to hate to turn over vast sums of money to anti-vaxxers eager to spread disinformation to the masses.

The allegations in Children’s Health Fund, briefly explained

It’s not immediately clear how much money is at stake in this case, but the amount is likely to be quite high. The plaintiffs claim that the media defendants conspired to shut down or severely harm anti-vaxxer websites and similar content that collectively brought in millions of readers and viewers. Federal antitrust law permits antitrust plaintiffs to recover “threefold the damages” they suffered because of a defendant’s unlawful actions.

And they’re seeking those damages from members of a group known as the Trusted News Initiative (TNI), a partnership made up of some of the most important tech and media companies around the globe. According to the TNI’s website, this group seeks to bring “together organisations across media and technology to tackle harmful disinformation in real time.”

The TNI also identifies a long list of media and tech institutions as its “core partners”:

AP, AFP, BBC, CBC/Radio-Canada, European Broadcasting Union (EBU), Financial Times, Information Futures Lab, Google/YouTube, The Hindu, The Nation Media Group, Meta, Microsoft, Reuters, Reuters Institute for the Study of Journalism, Twitter, The Washington Post, Kompass – Indonesia, Dawn – Pakistan, Indian Express – India, NDTV – India, ABC – Australia, SBS – Australia, NHK – Japan.

The Children’s Health Fund plaintiffs draw many of their allegations against this media partnership from publicly available information — such as a 2020 speech by BBC executive Jamie Angus, where he said that the TNI “has developed a shared early-warning system to alert partners about disinformation that has the potential to become viral and cause significant harm to the integrity of elections.”

Similarly, a December 2020 announcement published on the BBC’s website revealed that the TNI also seeks to “combat spread of harmful vaccine disinformation.”

Although they provide little evidence to support this particular claim, the Children’s Health Fund plaintiffs allege that TNI members sought to suppress 23 ideas — most of which relate to Covid — that they deemed to be “misinformation.” The plaintiffs complain, for example, that TNI members suppressed claims that the drugs hydroxychloroquine and ivermectin are “an effective treatment for COVID” (the evidence that either drug is an effective treatment is exceedingly weak). They accuse the TNI of suppressing false claims that masks “do not prevent the spread of Covid.” And they accuse the TNI of suppressing various attacks on vaccines.

Meanwhile, the plaintiffs include several individuals who ran websites and other media ventures that publish content like “COVID vaccines harm some people” or “Elites Worried: COVID Cases in India Plummet After Government Promotes Ivermectin and Hydroxychloroquine Use.” Many of them claim that they were “censored, shadow-banned, and de-platformed” by members of the TNI.

The crux of their legal argument is that the TNI engaged in a “group boycott,” a forbidden practice under federal antitrust law, where multiple competitors within an industry collude to deny essential goods or services to other competitors. Specifically, the Children’s Health Fund plaintiffs suggest that news organizations within the TNI colluded with tech companies within TNI to deny anti-vaxxer sites access to platforms like YouTube, Facebook, or Twitter.

At least some of these plaintiffs’ factual claims appear to be true. TNI does exist. It does include both major news companies and major tech platforms. And it did seek to “combat spread of harmful vaccine disinformation.”

But even if these plaintiffs eventually prove that top news and tech executives got together in a smoke-filled room and plotted to suppress plaintiffs’ anti-vaxxer content, there is a big, glaring problem with their legal arguments. Antitrust law does prohibit group boycotts that seek to suppress competition within an industry, but it does not prevent competitors from working together toward shared social or political goals.

It is not illegal for media companies to work together to protect public health

Federal law prohibits competitors from banding together in a conspiracy “in restraint of trade.” The purpose of this ban is to prevent companies from engaging in anti-competitive practices that distort the market and leave consumers worse off. It’s not to prevent companies from working together toward shared political or social goals.

Indeed, if antitrust law did forbid competitors from working together on such goals, then advocacy groups such as the US Chamber of Commerce or the National Association of Manufacturers would be unlawful because these organizations pool resources from multiple competing businesses to lobby policymakers.

The Supreme Court drew the line separating economically motivated boycotts (which ordinarily are not allowed under federal antitrust law) and politically or socially motivated ones (which are often protected by the First Amendment) in two decisions: NAACP v. Claiborne Hardware (1982) and FTC v. Superior Court Trial Lawyers Association (1990).

In the former case, the NAACP led a boycott where Black consumers refused to patronize white merchants in Claiborne County, Mississippi. The purpose of this boycott was to advance various civil rights-related demands, including desegregation of all public facilities, integration of bus stations, and the hiring of more Black police officers.

In ruling that the boycotters’ nonviolent actions were permissible, the Supreme Court focused on the fact that their goals were political and not economic. Yes, the Court explained, the boycotters must have known that the boycotted merchants “would sustain economic injury,” but that did not change the fact that “the purpose of [the boycotters’] campaign was not to destroy legitimate competition.”

Indeed, the Court held that suppressing this boycott would give “insufficient weight to the First Amendment’s protection of political speech and association.”

The Trial Lawyers case, meanwhile, involved a group of lawyers who had historically been paid by the District of Columbia to represent indigent criminal defendants, but who collectively refused to take on additional cases until the District raised the rates it paid these lawyers.

Although this boycott, which successfully convinced DC to raise these rates, did have clear political implications — higher rates for indigent defense lawyers meant that more and better attorneys would agree to represent such clients — the Court deemed it to be an impermissible economic boycott. “The agreement among the CJA lawyers was designed to obtain higher prices for their services and was implemented by a concerted refusal to serve an important customer in the market for legal services,” the Court explained. Such a “constriction of supply” the Court determined, “is the essence of ‘price-fixing.’”

Yet, while Trial Lawyers deemed the boycott in that case to be an impermissible economic boycott, it also reaffirmed Claiborne Hardware’s holding that politically and socially motivated boycotts are acceptable. The “undenied objective” of the lawyers’ boycott, the Court explained, “was an economic advantage for those who agreed to participate.” By contrast, “those who joined the Claiborne Hardware boycott sought no special advantage for themselves.” Instead, “they struggled ‘to change a social order that had consistently treated them as second class citizens.’”

Read together, in other words, these two Supreme Court cases establish that the Children’s Health Fund plaintiffs cannot prevail unless they can prove that the TNI was formed not to advance a political or social goal like protecting public health or preventing the spread of election disinformation, but to advance the economic goal of pushing competitors out of the market.

But the plaintiffs offer little, if any, evidence to support such an allegation, beyond a few conclusory claims that a few companies or individuals associated with the TNI benefited from certain Covid-related policies. They claim, for example, that TNI members Facebook and Microsoft “have direct or indirect massive pharmaceutical investments that stood to increase, and did increase, in value from promotion of the COVID vaccines.” They also imply that the Washington Post, which is owned by Amazon founder Jeff Bezos, sought to extend Covid lockdowns because Amazon profited “as the result of the lockdown policies that the TNI promoted.”

In any event, these plaintiffs are welcome to try to prove that a diverse array of media and tech companies, including outlets in India and Australia, engaged in a massive conspiracy to extend Covid lockdowns because it was good for Jeff Bezos’s stock portfolio. But the most likely explanation for why the TNI exists is the most obvious one — that media outlets and tech companies were genuinely concerned about the problem of disinformation that could harm public health, and they worked together to keep a lid on such disinformation. That’s a political or social goal, not an economic one.

If Kacsmaryk rules in favor of the anti-vaxxers, it could be needlessly difficult to get his decision reversed

Given the legal authorities weighing against the Children’s Health Fund plaintiffs, the biggest reason to fear that they might prevail is that the case is assigned to Matthew Kacsmaryk. Kacsmaryk’s record on the bench indicates he is willing to use his public office to advance reactionary causes, regardless of what the law actually says. He could reject this anti-vaxxer lawsuit, but it would be a delightful surprise if he did.

And, should Kacsmaryk order the four news industry defendants to fork over huge piles of money to the anti-vaxxers, it could prove difficult to toss out that decision on appeal for two reasons.

The first is that appellate judges are typically supposed to defer to a trial judge’s factual findings, unless those findings are “clearly erroneous.” Ordinarily, this is a good practice because trial judges are actually involved in constructing the factual record in a case. So they are better equipped to weigh that record and to assess the credibility of witnesses than an appeals court judge who can only review a transcript of the lower court’s proceedings.

But this “clearly erroneous” standard can create a problem when trial court judges act in bad faith. If Kacsmaryk should declare, for example, that TNI conspired to extend the Covid lockdowns in order to pad Amazon’s profits, appellate judges aren’t forbidden from overruling that determination. But the clearly erroneous standard could provide an appellate judge who is looking for an excuse to affirm Kacsmaryk with that very excuse.

And that brings us to the second problem the media defendants are likely to face on appeal. Kacsmaryk’s decisions appeal to the United States Court of Appeals for the Fifth Circuit, a right-wing court dominated by Trump appointees and other Republicans who share Kacsmaryk’s penchant for writing their own preferences into the law.

Most cases in the Fifth Circuit are heard by three-judge panels randomly selected from among the court’s more than two dozen judges, and it is possible to draw a panel of reasonable judges in this court. But a party appealing to the Fifth Circuit is mathematically more likely than not to draw a reactionary panel that may delight at the possibility of sticking it to supposedly liberal media outlets.

The first time this case might be heard by judges who are actually interested in deciding this case based on the law, in other words, could be when the case reaches the Supreme Court. And the Supreme Court, which is itself dominated by conservative Republicans, turns away the vast majority of petitions asking the justices to hear a particular case. Even if the Court agrees to hear this case, moreover, the media companies will still have to overcome the clearly erroneous standard if they challenge any of Kacsmaryk’s factual findings.

The bottom line, in other words, is that some of the biggest companies in the tech and media industries have to seriously grapple with a case that’s in the hands of a far-right culture warrior with a penchant for reading the law creatively to benefit right-wing causes. Should the media defendants lose before Kacsmaryk, moreover, they face an uncertain path on appeal. And no matter what happens, they are likely to have to spend simply enormous amounts on legal fees as their lawyers struggle to convince a right-wing judiciary not to score a few punches on a perennial Republican punching bag: the press.

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