Court filing

Complaint — Changizi v. HHS

Filed March 24, 2022 in Changizi v. HHS; one of 18 filings from this case.

Record facts

Court	U.S. District Court for the Southern District of Ohio, Eastern Division
Filed	2022-03-24

U.S. District Court for the Southern District of Ohio, Eastern Division · No. 2:22-cv-01776-EAS-CMV · Doc. 1 · 2022-03-24 · Docket on CourtListener

Full text

1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
COLUMBUS DIVISION
)
)
MARK CHANGIZI,
MICHAEL P. SENGER,
DANIEL KOTZIN,
)
Plaintiffs,
)
COMPLAINT
)
FOR DECLARATORY AND
v.
)
INJUNCTIVE RELIEF
)
DEPARTMENT OF HEALTH AND
)
HUMAN SERVICES;
)
VIVEK MURTHY, United States
)
Surgeon General, in his
)
official capacity, and
)
XAVIER BECERRA,
)
Secretary of the Department
)
JURY TRIAL DEMANDED
of Health and Human Services,
)
in his official capacity,
)
)
Defendants.
)
INTRODUCTORY STATEMENT
The Plaintiffs in this case—Michael P. Senger, Mark Changizi, and Daniel Kotzin—
became active on Twitter, one of the world’s largest social media platforms, starting around March
2020. All three Plaintiffs focused their accounts on criticizing restrictions imposed by
governments and public health authorities in response to COVID-19. Over the course of the
pandemic, the three accrued at least tens of thousands of followers and are influential on Twitter
as well as other social media platforms. Their activities on Twitter provided them with a social
network and the ability to express their views, to hear the views of others, and to engage with
detractors and fans alike.
The White House began a coordinated and escalating public campaign to stop the flow of
alleged “health misinformation” related to COVID-19 in May of 2021. On May 5, White House
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Press Secretary Jen Psaki stated that the President believed social media platforms have a
responsibility to censor health “misinformation” related to COVID-19 vaccinations, they needed
to do more to effectuate this end, and that the President believed “anti-trust” efforts were in order.
This assertion clearly conveyed a thinly veiled threat that, if tech companies refused to censor,
there would be unwelcome consequences. Logically, plans to launch this intimidation campaign
must have begun prior to this initial public statement on the subject.
In July of 2021, Surgeon General Vivek Murthy and the Department of Health and Human
Services (HHS) ratcheted up the pressure by, inter alia, issuing an advisory on the subject (“July
Advisory”). They again directed much of their ire towards social media platforms, which they
largely blamed for the problem of ostensible “misinformation,” ordering social media companies,
like Twitter, to remove certain posts and ban certain users. Statements made by Murthy, Psaki,
and President Joe Biden made clear that these were not requests, but demands, and that the
administration was contemplating penalties against social media platforms for allowing
“misinformation” to be disseminated on them. As reporters pointed out during press conferences
held on July 15 and 16, 2021, what the public health establishment deems misinformation today
may next week turn out to be the consensus position of experts on the matter. For example,
individuals were censored for posting on social media that COVID-19 may have originated in a
lab, which the Biden Administration later acknowledged was a definite possibility.
Twitter began to suspend more and more accounts, some permanently, following this
initiative. Between May and December 2021, after the May and July announcements by Murthy
and the White House, all three Plaintiffs were suspended from Twitter at least once for, inter alia,
tweeting that the vaccines do not stop transmission of COVID-19 (i.e., are not sterilizing vaccines)
and that masks do not work and are harmful. The suspensions ranged from 12 hours to 7 days.
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In December of 2021, Mr. Changizi was permanently suspended for stating that the
seasonal flu is more deadly to children than COVID-19, the vaccines had not been studied long-
term for that age group, asymptomatic individuals rarely spread the virus, and vaccines do not slow
the spread. All of these views are shared by some scientists, including CDC Director Rochelle
Walensky, who remarked in August of 2021 that the vaccines do not stop transmission. Mr.
Changizi was reinstated following an appeal.
On March 3, 2022, the Surgeon General demanded that technology platforms, inter alia,
turn over “information about sources of COVID-19 misinformation” by May 2, 2022 (the RFI).
See Dep’t of Health & Hum. Servs., Docket HHS-OASH-2022-0006, Impact of Health
Misinformation in the Digital Information Environment in the United States Throughout the
COVID-19
Pandemic
Request
for
Information
(Mar.
10,
2022)
available
at
https://www.regulations.gov/document/HHS-OASH-2022-0006-0001 (COVID-19 RFI).1
Just days after the COVID-19 RFI was issued, Mr. Kotzin was suspended for 7 days,
allegedly for a Tweet stating that the pandemic would end not because of vaccination, but when
most people have been infected (a view held by many epidemiologists). Around the same time,
on March 8, 2022, Mr. Senger was permanently suspended—meaning he is never permitted to
create another Twitter account—for voicing his opinion that COVID-19 mitigation measures do
not work (which numerous studies, including a recent one from Johns Hopkins University, have
found to be the case).
No statute endows the Surgeon General with the authority to direct social media companies
to censor individuals or viewpoints that the Biden Administration considers problematic. Indeed,

1 Collectively, Psaki’s May statements, the July Advisory and the March RFI, along with presumptive efforts by the
Biden Administration that occurred in the interim, will be referred to as “the Surgeon General’s initiative” or “the
initiative.”
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Congress could not adopt such a statute because of the constitutional violations such a law would
entail (see infra). Accordingly, this initiative constitutes ultra vires action. In sum, to the extent
the Surgeon General is interpreting the statute that empowers him to stem the spread of
communicable diseases, 42 U.S.C. § 264, to encompass this initiative, then he is either
misconstruing the statute or else the statute violates Article I, § 1 of the U.S. Constitution, which
vests all legislative power in Congress.
Furthermore, the facts laid out above demonstrate that—at least since May of 2021 and
almost certainly before that—the Surgeon General, HHS, and the Biden Administration, are not
simply colluding with, but instrumentalizing Twitter and other technology companies to effectuate
their goal of silencing opinions that diverge from the White House’s messaging on COVID-19.
That commandeering transforms the Surgeon General’s initiative into government action.
This sort of publicly directed censorship, which strikes at the heart of what the First
Amendment to the United States Constitution was designed to protect—free speech, especially
political speech—constitutes unlawful government action. Likewise, the Surgeon General’s
demand that social media platforms, including Twitter, turn over information about users to the
Government that the Government has deemed problematic, constitutes a warrantless search in
violation of the Fourth Amendment to the United States Constitution (nor does any statute give
the Surgeon General such authority).
Finally, this action exceeds the Surgeon General’s and HHS’s powers under the
Administrative Procedure Act (APA). Because this initiative constitutes final agency action and
violates Plaintiffs’ constitutional rights, this Court should find it unlawful and invalid and set aside
the RFI.

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JURISDICTION AND VENUE
1.
This Court has federal question and supplemental jurisdiction pursuant to 28 U.S.C.
§ 133 and 28 U.S.C. § 1367 because the federal law claims arise under the Constitution and statutes
of the United States and pursuant to 28 U.S.C. § 1402 because the United States is a defendant in
this action.
2.
Venue is proper in this District under 28 U.S.C. § 1391(b)(2) because Plaintiff Mark
Changizi resides in this District.
3.
This Court may issue a declaratory judgment and grant permanent injunctive relief
pursuant to 28 U.S.C. §§ 2201-2202.
PARTIES
4.
Plaintiff Michael P. Senger is an attorney and author of Snake Oil: How Xi Jinping
Shut Down the World. He resides in San Francisco, California.
5.
Plaintiff Mark Changizi is a theoretical cognitive scientist. He resides in Columbus,
Ohio.
6.
Plaintiff Daniel P. Kotzin is a stay-at-home father. He resides in Denver, Colorado.
7.
Defendant HHS is an agency of the United States.
8.
Defendant Dr. Vivek Murthy is Surgeon General of the United States. He is sued
in his official capacity.
9.
Defendant Xavier Becerra is Secretary of the Department of Health and Human
Services (HHS). He is sued in his official capacity.

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STATEMENT OF FACTS
I.
TWITTER AND THE GOVERNMENT’S STATEMENTS OF INTENT TO USE SOCIAL MEDIA
COMPANIES TO ACCOMPLISH GOVERNMENTAL OBJECTIVES
10.
Twitter, one of the largest social media platforms in the world, “allows its users to
electronically send messages of limited length to the public.” Knight First Amend. Inst. at
Columbia Univ. v. Trump, 928 F.3d 226, 230 (2d Cir. 2019), cert. granted, judgment vacated sub
nom. Biden v. Knight First Amend Inst., 141 S. Ct. 1220 (2021).
11.
A Twitter user can “post their own messages (referred to as tweeting)” and “may
also respond to the messages of others (replying), republish the messages of others (retweeting),
or convey approval or acknowledgment of another’s message by ‘liking’” it. Id.
12.
Users can accrue followers. Follower size is one indication of an account’s impact
and reach, but engagements (likes and retweets) and impressions (views) are likewise measures of
influence.
13.
Twitter is among the world’s leading social media websites, with a user base of
hundreds of millions. According to a 2019 survey, “[a]round one-in-five U.S. adults say they use
Twitter.”2
14.
The ubiquity of the company’s platform gives it significant influence over public
discourse: among U.S. adult Twitter users, more than half receive news from the site on a regular
basis.3

2 Adam Hughes and Stefan Wojcick, 10 Facts about Americans and Twitter, Pew Res. Ctr. (Aug. 2, 2019), available
at https://www.pewresearch.org/fact-tank/2019/08/02/10-facts-about-americans-and-twitter/.

3 See Mason Walker & Katerina Eva Matsa. News Consumption Across Social Media in 2021, Pew Res. Ctr. (Sept.
20, 2021), available at https://www.pewresearch.org/journalism/2021/09/20/news-consumption-across-social-
media-in-2021/.

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15.
On information and belief, Twitter collects information from individuals who
create accounts, including information that is otherwise not public, including a user’s “name and
phone number or email address.”4
16.
On information and belief, Twitter can access direct messages and group messages
(or group chats) that users exchange on the platform.
17.
In March of 2020, formerly having eschewed censorship, Twitter announced that it
was “[b]roadening its definition of harm to address content that goes directly against guidance
from authoritative sources of global and local public health information” and that it would censor
information that fell into this category.5
18.
Twitter continued to ramp up efforts to quell the spread of “misleading” COVID-
19 information on several subsequent dates, broadening the definition and explaining that it could
be labeled or even removed.6
19.
Nevertheless, on information and belief, Twitter only rarely suspended users for
spreading “misleading information” about COVID-19, per its policy, before March 1, 2021.

4 Twitter, How to sign up for a Twitter account, Help Center, https://bit.ly/3KS0MtH (last visited Mar. 17, 2022).

5 Vijaya Gadde (@Vijaya) & Matt Derella (@Derella), An update on our continuity strategy during COVID-19,
Twitter Blog (last updated Apr. 1, 2020), https://blog.twitter.com/en_us/topics/company/2020/An-update-on-our-
continuity-strategy-during-COVID-19.

6 See Yoel Roth (@yoyoel) & Nick Prickles (@nickpickles), Updating our approach to misleading information,
Twitter Blog (May 11, 2020), https://blog.twitter.com/en_us/topics/product/2020/updating-our-approach-to-
misleading-information; Twitter Safety (@TwitterSafety), Twitter Safety, COVID-19: Our approach to misleading
vaccine information, Twitter Blog (Dec. 16, 2020), https://blog.twitter.com/en_us/topics/company/2020/covid19-
vaccine; Twitter, COVID-19 misleading information policy, Help Center General guidelines and policies (Dec. 16,
2020),
https://help.twitter.com/en/rules-and-policies/medical-misinformation-policy
[https://web.archive.org/web/20201216200114/https://help.twitter.com/en/rules-and-policies/medical-
misinformation-policy].

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20.
On that date, Twitter announced that it was instituting a new policy: after five or
more infractions, permanent suspension would result.7
21.
Permanent suspension means not only that a user’s account is permanently
disabled, but that he or she may never create another Twitter account.
22.
On May 5, 2021, White House Press Secretary Jen Psaki gave a press conference
where she stated that:
The President’s view is that the major platforms have a
responsibility related to the health and safety of all Americans to
stop amplifying untrustworthy content, disinformation, and
misinformation, especially related to Covid19 vaccinations …. He
also supports better privacy protections and a robust anti-trust
program. So, his view is that there’s more that needs to be done to
ensure that this type of misinformation, disinformation, damaging,
sometimes life-threatening information, is not going out to the
American public (emphasis added).8

23.
On July 15, 2021, the Surgeon General released an advisory (the July Advisory)
aimed at censoring purported “misinformation” (according to the Government) about COVID-19.
See U.S. Surgeon General’s Advisory, Confronting Health Misinformation (July 15, 2021),
https://www.hhs.gov/sites/default/files/surgeon-general-misinformation-advisory.pdf
(COVID-
19 Advisory).
24.
According to the Surgeon General’s advisory, “[m]isinformation” has “caused
confusion and led people to decline COVID-19 vaccines, reject public health measures such as
masking and physical distancing. And use unproven treatments.” Id. at 4.

7 Twitter, COVID-19 misleading information policy, Help Center General guidelines and policies (Mar. 1, 2021),
https://help.twitter.com/en/rules-and-policies/medical-misinformation-policy
[https://web.archive.org/web/20210827062904/https://help.twitter.com/en/rules-and-policies/medical-
misinformation-policy].

8 Big Tech Censorship is Actually Government Censorship | Revue (getrevue.co)
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25.
The advisory identifies social media platforms as major sources of
“misinformation.” Id. at 3-4.
26.
Among other things, the Surgeon General’s advisory commands technology
platforms to:
a. Collect data on the “spread and impact of misinformation.”
b. “Strengthen the monitoring of misinformation.”
c. “Prioritize early detection of misinformation ‘super-spreaders’ and repeat
offenders” by “impos[ing] clear consequences for accounts that repeatedly
violate platform policies.”
d. “Proactively address information deficits” by “[p]rovid[ing] information from
trusted and credible sources[.]”
e. “Amplify communications from trusted messengers and subject matter
experts.” Id. at 12.
27.
The COVID-19 Advisory also appeared on the HHS website and stated, inter alia,
that “American lives are at risk. From the tech and social media companies who must do more to
address the spread on their platforms…” (emphasis added).9
28.
That day, Press Secretary Jen Psaki gave a joint press briefing with the Surgeon
General to discuss the advisory.10
29.
Murthy acknowledged that:

9 Press Release, Office of the Surgeon General, US Surgeon General Issues Advisory During COVID-19 Vaccination
Push
Warning
American
Public
About
Threat
of
Health
Misinformation
(July
15,
2021),
https://www.hhs.gov/about/news/2021/07/15/us-surgeon-general-issues-advisory-during-covid-19-vaccination-push-
warning-american.html.

10 Press Briefing by Press Secretary Jen Psaki and Surgeon General Dr. Vivek H. Murthy (July 15, 2021, 1:05 PM
EDT), https://www.whitehouse.gov/briefing-room/press-briefings/2021/07/15/press-briefing-by-press-secretary-jen-
psaki-and-surgeon-general-dr-vivek-h-murthy-july-15-2021/.

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health misinformation didn’t start with COVID-19. What’s
different now though is the speed and scale at which health
misinformation is spreading. Modern technology companies have
enabled misinformation to poison our information environment with
little accountability to their users. They’ve allowed people who
intentionally
spread
misinformation—what
we
call
“disinformation”—to have extraordinary reach.

Id. (emphasis added).

30.
Murthy continued:
we expect more from our technology companies. We’re asking
them to operate with greater transparency and accountability. We’re
asking them to monitor misinformation more closely. We’re asking
them to consistently take action against misinformation super
spreaders on their platforms.

Id. (emphasis added).

31.
In response to a reporter’s question about whether the federal government had taken
action to ensure cooperation of tech companies, Ms. Psaki stated:
In terms of actions, Alex, that we have taken—or we’re working to
take, I should say—from the federal government: We’ve increased
disinformation research and tracking within the Surgeon General’s
office. We’re flagging problematic posts for Facebook that spread
disinformation (emphasis added).

* * *
There are also proposed changes that we have made to social media
platforms, including Facebook, and those specifically are four key
steps.

One, that they measure and publicly share the impact of
misinformation on their platform. Facebook should provide,
publicly and transparently, data on the reach of COVID-19—
COVID vaccine misinformation. Not just engagement, but the reach
of the misinformation and the audience that it’s reaching.

That will help us ensure we’re getting accurate information to
people. This should be provided not just to researchers, but to the
public so that the public knows and understands what is accurate and
inaccurate.

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Second, that we have recommended—proposed that they create a
robust enforcement strategy that bridges their properties and
provides transparency about the rules. So, about—I think this was a
question asked before—there’s about 12 people who are producing
65 percent of anti-vaccine misinformation on social media
platforms. All of them remain active on Facebook, despite some
even being banned on other platforms, including Facebook—ones
that
Facebook
owns
(emphasis
added).

Third, it’s important to take faster action against harmful posts. As
you all know, information travels quite quickly on social media
platforms; sometimes it’s not accurate. And Facebook needs to
move more quickly to remove harmful, violative posts—posts that
will be within their policies for removal often remain up for days.
That’s too long. The information spreads too quickly (emphasis
added).

Finally, we have proposed they promote quality information sources
in their feed algorithm.

Id. (emphasis added).

32.
On July 16, 2021, a reporter asked Ms. Psaki to elaborate on the Government’s role
in flagging Facebook “disinformation.”11
33.
Ms. Psaki responded:
it shouldn’t come as any surprise that we’re in regular touch with
social media platforms—just like we’re in regular touch with all of
you and your media outlets—about areas where we have concern,
information that might be useful … so we are regularly making sure
social media platforms are aware of the latest narratives dangerous
to public health that we and many other Americans … are seeing
across all of social and traditional media. And we work to engage
with them to better understand the enforcement of social media
platforms.

Id.

11 Press Briefing by Press Secretary Jen Psaki (July 16, 2021, 1:20 PM EDT), https://www.whitehouse.gov/briefing-
room/press-briefings/2021/07/16/press-briefing-by-press-secretary-jen-psaki-july-16-2021/.

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34.
Ms. Psaki called on social media companies to ban users who had also been banned
from other platforms for ostensible misinformation and to “tak[e] faster action against harmful
posts” and “promot[e] quality information algorithms.” Id.
35.
A reporter stated that “yesterday after the press briefing” Facebook said that they
had removed 18 million pieces of COVID misinformation, and asked whether the White House
found that sufficient. Id.
36.
Ms. Psaki responded, “[c]learly not, because we’re talking about additional steps
that should be taken.” Id. (emphasis added).
37.
She also reiterated that “we are in regular touch with social media platforms.” Id.
38.
Ms. Psaki told the reporter that “I, frankly, think it should be your biggest concern
… the number of people who are dying around the country because they’re getting
misinformation[.]” Id.
39.
When the reporter stated that people were concerned about “Big Brother” watching
them through Facebook, Ms. Psaki responded that it was “unlikely” that the surveillance issue
concerned people more than “people dying across the country because of a pandemic where
misinformation is traveling on social media platforms.” Id.
40.
The reporter pointed out that there were videos of Dr. Fauci saying in 2020 that
there was no reason to mask and asked whether the administration was going to ask Facebook to
remove that material. Id.
41.
Ms. Psaki responded that science and information “evolves,” to which the reporter
responded “exactly,” and went on to make the point that Facebook used to prevent people from
posting that COVID-19 may have originated in a lab, something President Biden now admitted
was a possibility. Id.
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42.
That day, in response to a reporter who asked, “On COVID misinformation, what’s
your message to platforms like Facebook,” President Biden said, “They’re killing people.”12
43.
President Biden’s statement caused other media to conclude that the government
“blamed” social media companies “for spreading misinformation about the coronavirus and
vaccines” creating “stalling U.S. vaccine rates.”13
44.
Four days after President Biden’s comments, USA Today reported that “[t]he White
House is assessing whether social media platforms are legally liable for misinformation spread on
their platforms.”14
45.
The report noted: “[r]elations are tense between the Biden administration and
social media platforms,” and that the government was “examining how misinformation fits into
the liability protections granted by Section 230 of the Communications Decency Act, which
shields online platforms from being responsible for what is posted by third parties on their sites.”
Id.
46.
In a January 2022 interview on MSNBC, Murthy stated that social media
“platforms still have not stepped up to do the right thing[,]” that the focus in stopping the spread
of “misinformation” should be on these companies, and that “this is actually about what
government can do. This is about companies and individuals recognizing that the only way we

12
C-Span,
President
Biden:
“They’re
killing
people.”,
YouTube
(July
16,
2021),
https://www.youtube.com/watch?v=gJoOtLn4goY.

13 Lauren Egan, ‘They’re killing people’: Biden blames Facebook, other social media for allowing Covid
misinformation, NBC News (July 16, 2021, 4:10 PM EDT), https://www.nbcnews.com/politics/white-house/they-re-
killing-people-biden-blames-facebookother-social-media-n1274232.

14 Matthew Brown, ‘They should be held accountable’: White House reviews platforms’ misinformation liability, USA
Today (July 20, 2021, updated 8:06 PM ET), https://www.usatoday.com/story/news/politics/2021/07/20/whitehouse-
reviews-section-230-protections-covid-misinformation/8024210002/.

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get past misinformation is if we are careful about what we say and we use the power that we have
to limit the spread of that misinformation.”15
47.
On March 3, 2022, the Surgeon General formally demanded that major tech
platforms submit information regarding COVID-19 misinformation.16
48.
According to the New York Times, Murthy “demanded” information about the
major sources of COVID-19 misinformation by May 2, 2022. Id.
49.
Technically, refusing to provide the information does not carry a penalty, but this
is the first such formal request. Id.
50.
The “Request for Information” webpage created to facilitate this reporting asks for
information from technology platforms, inter alia, about “sources of COVID-19 misinformation”
including “specific, public actors that are providing misinformation[.]” HHS Request for
Information
on
Mar.
7,
2022,
available
at
https://www.federalregister.gov/documents/2022/03/07/2022-04777/impact-of-health-
misinformation-in-the-digital-information-environment-in-the-united-states.
51.
This is defined as “both specific, public actors that are providing [‘health
information that is false inaccurate, or misleading according to the best available evidence at the
time’], as well as components of specific platforms that are driving exposure to information” dating
back to January 2020. COVID-19 RFI at 4, 5, 7-9.

15 Tom Elliott (@tomselliott), Twitter (Jan. 25, 2022, 10:03 AM), bit.ly/3CGcncD.

16 See Davey Alba, The surgeon general calls on Big Tech to turn over Covid-19 misinformation data, The New York
Times
(Mar.
3,
2022),
https://www.nytimes.com/2022/03/03/technology/surgeon-general-covid-
misinformation.html; see also COVID-19 RFI.

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52.
The technology platforms covered by the RFI are broad and include “general search
engines, content sharing platforms, social media platforms, e-commerce platforms, crowd sourced
platforms, and instant messaging systems.” Id. at 6.
53.
While this purports to be a mere information-gathering initiative, the language—
along with previous and contemporaneous statements by Murthy, Psaki, and Biden—establishes
that the RFI is a demand masquerading as an innocent “request.”
54.
On information and belief, users and technology companies are on notice that the
Government’s involvement in social media censorship is likely to escalate, causing a chilling effect
on speech and prompting technology companies to ramp up censorship for fear of adverse action
against them by the Government, including, but not limited to, regulation.
II. THE PLAINTIFFS’ TWITTER ACCOUNTS
55.
All three Plaintiffs maintain(ed) active Twitter accounts since at least March of
2020.
56.
While the content of each is or was unique, all three Plaintiffs regularly used their
accounts to: (1) question the wisdom, efficacy, and morality of government responses to the
pandemic, specifically lockdowns and mask and vaccine mandates; (2) read other users’ views on
the same or similar subjects; and (3) engage with other users on the same or similar topics.
57.
Before his permanent suspension, Mr. Senger had 112,000 followers. He had
maintained an account since about 2014 but did not become an active, regular user until 2020. See
Declaration of Michael P. Senger, Exhibit A ¶ 3.
58.
Mr. Kotzin has 29,700 followers. He created his account in April 2013. See
Declaration of Daniel P. Kotzin, Exhibit B ¶ 3.
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59.
Mr. Changizi has 37,000 followers, having created his account in June 2009. See
Declaration of Mark Changizi, Exhibit C ¶ 5.
60.
Upon information and belief, all three Plaintiffs’ accounts are considered influential
given the size of their followings, as well as the level of engagement with their accounts.
61.
Mr. Senger was suspended twice for 12 hours, on October 27 and 29, 2021. See
Exhibit A at ¶ 4.
62.
On March 8, 2022, Twitter permanently suspended Mr. Senger’s account. Id. at ¶
7.
63.
The Tweet cited for this harsh penalty had linked to an Atlantic article by Ed Yong
that bore the headline: “How Did This Many Deaths Become Normal?”
64.
Mr. Senger had remarked: “How did this many ‘deaths’ become normal? Because,
though they may not yet be willing to face it, the vast majority have realized that every COVID
policy—from the lockdowns and masks to the tests, death coding, and vaccine passes—has been
one, giant fraud.”
65.
Twitter notified Mr. Senger that his account had been suspended for “violating the
Twitter Rules” by “spreading misleading and potentially harmful information related to COVID-
19.”
66.
The notification further stated that “if you attempt to evade a permanent suspension
by creating new accounts, we will suspend your new accounts. If you wish to appeal this
suspension, please contact our support team.” See Exhibit A at ¶ 7; Screenshot 1, Attached to
Exhibit A.
67.
Upon information and belief, the abrupt nature of the permanent suspension which
followed on the heels of the Surgeon General’s RFI, combined with the fact that this post expressed
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an opinion that is shared by many individuals around the world, indicates that Twitter suspended
Mr. Senger because of the Surgeon General’s initiative.
68.
Mr. Kotzin has been suspended twice, once for 24 hours and once for 7 days.
69.
The first Tweet, posted on September 24, 2021, stated: “There is not now, nor has
there ever been, evidence that the Covid shots reduce infection or transmission. Vaccine passports;
vaccine mandates; vaccine requirements—they are all an abomination.”
70.
Mr. Kotzin received an email notification stating that his account had been locked
for “violating the policy on spreading misleading and potentially harmful information related to
COVID-19.”
71.
He was warned that “repeated violations may lead to permanent suspension of your
account.” See Exhibit B ¶ 4(a), (b); Screenshot 1, Attached to Exhibit B.
72.
The second tweet, posted on March 7, 2022, read: “It is important to never lose
sight of the fact that the global pandemic is ending not because of the vaccines, but because almost
everyone on the planet got infected with covid.”
73.
After labeling the tweet “misleading,” Mr. Kotzin was again notified by Twitter
that he was being locked out of his account for 7 days in an email that was identical to the first
one. See Exhibit B ¶ 4(c), (d); Screenshot 2, Attached to Exhibit B.
74.
On information and belief, for the same reasons discussed supra ¶ 67, Mr. Kotzin’s
suspension resulted from the Surgeon General’s initiative.
75.
Mr. Changizi first was suspended by Twitter for 12 hours on April 20, 2021, for
linking to an article finding that masks were “ineffective, harmful.” See Exhibit C ¶ 6.
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76.
By way of explanation for the suspension, Twitter stated that his account had been
locked for “violating the Twitter rules” by “spreading misleading and potentially harmful
information related to COVID-19.” See Exhibit C ¶ 6; Screenshot 1, Attached to Exhibit C.
77.
On June 25, 2021, Mr. Changizi was suspended again, but the message did not
contain the ostensibly offending Tweet, so he does not know why. See Exhibit C ¶ 7.
78.
Around December 1, 2021, Mr. Changizi learned, after being alerted by followers,
that his account was heavily censored and “de-boosted” (this means that the user’s tweets are de-
platformed—they appear in Twitter feeds much less frequently and replies to other posts may be
hidden). See Exhibit C ¶ 8.
79.
Mr. Changizi aggregated his monthly impressions, establishing that the de-boosting
actually began much earlier, around May of 2021. His engagements dropped precipitously at that
time and continued to decline. The only explanation for this sudden change was the de-boosting
to which Mr. Changizi was subsequently alerted. See Exhibit C ¶ 14.
80.
Mr. Changizi was permanently suspended on December 18, 2021, again for
“spreading misleading and potentially harmful information related to COVID-19.” The following
two Tweets were cited as the cause:
Covid is 10 to 20 times less dangerous than flu for kids. Get. A.
Grip. There is NO long[-] term data for the shot. And even the
short[-] and medium[-]term data for that age group are ambiguous
at best.

Asymptomatics rarely spread it ~ Vaccinations don’t slow spread ~
unvaxed pose no threat to vaxxed ~ Risks are broadly flu like (and
safer than flu for &lt; 40) ~ Huge % of unvaxxed have superior
natural immunity via recovery [sic].

See Exhibit C ¶ 9, Screenshot 2, Attached to Exhibit C.

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81.
The email to Mr. Changizi notifying him of the suspension was identical to that
received by Mr. Senger and warned him that any “attempt to evade a permanent suspension by
creating new accounts” would result in suspension of those accounts. See Exhibit C ¶ 10.
82.
Mr. Changizi appealed the suspension Christmas Day of 2021. He wrote that:
You have permanently suspended me for speaking out as a scientist
concerning the evidence-based dangers of Covid and the efficacy &
ethics of the interventions.

Ironically, I am one of the few scientists studying the importance of
free expression, and how it is an absolutely crucial part of the
mechanism society—and science—uses to stumble toward the truth.

I am an academic with a number of well known discoveries, my
sixth book appearing in a few months, and am also perhaps the only
person arguing against the interventions that understands there was
no “plandemic,” and has tried to educate people against their bias
toward conspiracy-theory thinking.

You have made a huge mistake in suspending so many voices,
including mine.

And, that is true whether or not what we’re saying is true! Of course,
I believe my statements are true, and always provide argument &
evidence. Remember: nearly every journal article in the academic
literature is false. But that doesn’t mean it gets cancelled. It is part
of the truth-discovery process itself.

Don’t become part of the problem by encouraging censorship and
groupthink.

See Exhibit C ¶ 11.

83.
On December 27, 2021, presumably as a result of his appeal, Twitter unsuspended
Mr. Changizi without further explanation, although he had to delete the two Tweets that led to the
suspension. See Exhibit C ¶ 12.
84.
Nevertheless, his account is heavily censored: his Tweets are typically labeled
“age-restricted adult content” that require an explicit effort to read them (in contrast to the vast
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majority of Twitter accounts). See Screenshot 3, Attached to Exhibit C. He does not occur in a
search unless his name is fully typed, and the same is true of his Instagram account (Instagram and
Facebook share an owner). See Exhibit C ¶ 13.
85.
Both his follower-ships on YouTube and Twitter accounts have plateaued, despite
the fact that Mr. Changizi is very active, and prior to the censorship period had steadily gained
followers. See Exhibit C ¶ 15.
86.
Notably, the Surgeon General’s initiative included the demands that social media
platforms make algorithms that promote favored accounts (those that endorse the Government’s
message).
87.
Thus, on information and belief, for similar reasons discussed supra ¶¶ 67 and 74
and given the points at which Mr. Changizi’s account was de-boosted and suspended (May of
2021, when the Biden Administration became public about the initiative, and April, June, and
December of 2021, respectively) Mr. Changizi’s de-boosting and suspension resulted from the
Surgeon General’s initiative.17
88.
Mr. Senger, because of Government action, has been permanently stripped of his
voice on Twitter, carrying negative implications for his personal and professional life: he promoted
his ideas and his work on the platform, and engaged with others—both those with whom he agreed
and detractors. See Exhibit A ¶ 8.
89.
In his own words:
I discovered a gift I had for writing and developed a network of
thousands of intelligent people from all over the world with whom I
had a close relationship discussing these and other issues. Now I

17 While the first public statement from someone in the Biden Administration blaming technology companies for
“misinformation,” instructing them to do more, and threatening action if they do not, occurred in May, commonsense
dictates that discussions of this nature had occurred previously. In all likelihood, the technology companies were
aware of the administration’s position on the matter.

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have been silenced and completely cut off from all of them, with no
viable way of getting that network back or promoting my work,
seemingly for the sole crime of being too articulate in vocalizing my
beliefs.

Regardless of motivation, this power to create a false consensus in
political discourse by systematically silencing the most articulate
voices from one side of any given debate, unbeknownst to 99% of
Twitter users, is unprecedented in American history: it is a power
that has historically only been held by authoritarian regimes. We
are expected to believe that Twitter and the Surgeon General will
use this unprecedent[ed] power only for good, based on nothing but
their promise that they will do so. Historically, such promises have
proven empty—and destructive—every single time.

See Exhibit A ¶¶ 11-12.
90.
Since his suspension, Mr. Changizi has become very careful about what he says on
Twitter to avoid permanent loss of his account. For example:
a. He never discusses early treatments, as that leads to immediate suspensions.
b. He avoids linking to studies and makes very general statements when referring
to the vaccines, which makes his Tweets vague and more difficult to
comprehend.
c. He fears engaging with those who have opposing views, as they may report him
to Twitter, increasing the chance of suspension. See Exhibit C ¶¶ 14-16.
91.
Mr. Kotzin considers “permanent suspension” a prospect “so devastating that I
self-censor.”
a. He contrives creative ways to avoid suspension, for example using
hypotheticals and phrasing statements in question form.
b. Although he believes he has valuable information and insight to share on the
subjects of treatment options, vaccines, and risk factors for a severe COVID-19
outcome, he does not do so. See Exhibit B ¶ 5.
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92.
Twitter’s COVID-related suspensions have been one-sided, in favor of the
government. Twitter suspends only those who question the wisdom and efficacy of government
restrictions or the government’s messaging on health matters related to COVID-19, especially but
not limited to the vaccines.
93.
Upon information and belief, there are no examples of Twitter suspending
individuals who have spread misinformation that is Government approved—by, for example,
exaggerating the efficacy of masks or the threat the virus poses to children.
94.
For example, CDC Director Rochelle Walensky has tweeted that masks reduce the
chance of COVID infection by over 80 percent, which is widely considered a falsehood.
95.
Eric Feigl-Ding, a nutritionist who is considered a COVID “expert” and has
publicly embraced the idea of stirring panic as a motivating force, has made untrue claims,
including that Omicron is more severe in children than adults, and that if 30 unmasked children
are in a classroom, about 4 will suffer from long covid.
96.
Rather than having their accounts locked or suspended, Twitter has promoted their
Tweets.
II.
THE SURGEON GENERAL’S STATUTORY AUTHORITY
97.
42 U.S.C. § 264(a) endows the Surgeon General of the United States with authority
to:
make and enforce such regulations as in his judgment are necessary
to prevent the introduction, transmission, or spread of
communicable diseases from foreign countries into the States or
possessions, or from one State or possession into any other State or
possession. For purposes of carrying out and enforcing such
regulations, the Surgeon General may provide for such inspection,
fumigation, disinfection, sanitation, pest extermination, destruction
of animals or articles found to be so infected or contaminated as to
be sources of dangerous infection to human beings, and other
measures, as in his judgment may be necessary.

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98.
In order to effectuate this goal, the statute provides for the Surgeon General to
apprehend and detain individuals who are infected with a communicable disease in certain
situations. 42 U.S.C. § 264(b).
99.
On March 14, 2021, the undersigned counsel (Jenin Younes) wrote to Max Lesko,
the individual within HHS designated to answer questions about the Surgeon General’s RFI, and
pointed out that 42 U.S.C. § 264 “pertains to the quarantining of individuals reasonably suspected
to be infected with communicable diseases,” and inquired whether there are “other statutes relied
upon for this action of which we are unaware[.]” See Exhibit D.
100.
Having received no response by the following day, Ms. Younes called and left a
message to the same effect.
101.
To date, Ms. Younes has received no response to this inquiry.
CLAIMS FOR RELIEF
COUNT I: THE SURGEON GENERAL’S INITIATIVE CONSTITUTES ULTRA VIRES ACTION

102.
Plaintiffs incorporate by reference all of the preceding material as though fully set
forth herein.
103.
“An agency’s power is no greater than that delegated to it by Congress.” Lyng v.
Payne, 476 U.S. 926, 937 (1986).
104.
“[A]gency actions beyond delegated authority are ultra vires and should be
invalidated.” Detroit International Bridge Company v. Government of Canada, 192 F.Supp.3d 54
(D.D.C. 2016). See National Federation of Independent Business v. OSHA, 595 U.S.___, Nos.
21A244 and 21A247 (2022) (OSHA vaccine mandate “extends beyond the agency’s legitimate
reach” evidenced by the “lack of historical precedent coupled with the breadth of authority that the
Secretary now claims”; internal citations and quotation marks omitted).
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105.
Courts look to an agency’s enabling statute and subsequent legislation to determine
whether the agency has exceeded its authority. See Tiger Lily LLC v. U.S. Dep’t of Housing and
Urban Development, 525 F.Supp.3d 850, 861 (W.D. Tennessee), aff’d, 5 F.4th 666 (6th Cir. 2021)
(determining that CDC eviction moratorium was unlawful, as “to hold otherwise would be to
construe the statute so broadly as to grant this administrative agency unfettered power to prohibit
or mandate anything, which would ignore the separation of powers and violate the non-delegation
doctrine.”).
106.
“A reviewing court owes no deference to the agency’s pronouncement on a
constitutional question and must make an independent assessment of a citizen’s claim of
constitutional right when reviewing agency decision-making.” Poett v. United States, 657 F.Supp.
230, 241 (D.D.C. 2009) (internal citations and quotation marks omitted).
107.
The statute which endows the Surgeon General and HHS with authority authorizes
these entities only to:
make and enforce such regulations as in his judgment are necessary
to prevent the introduction, transmission, or spread of
communicable diseases from foreign countries into the States or
possessions, or from one State or possession into any other State or
possession. For purposes of carrying out and enforcing such
regulations, the Surgeon General may provide for such inspection,
fumigation, disinfection, sanitation, pest extermination, destruction
of animals or articles found to be so infected or contaminated as to
be sources of dangerous infection to human beings, and other
measures, as in his judgment may be necessary.

U.S.C. § 264(a).
108.
This is the same statute that the CDC relied upon for authority to unlawfully halt
evictions nationwide. See Alabama Association of Realtors v. Department of Health and Human
Services, 141 S.Ct. 2485 (2021).
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109.
In Alabama Association, the Supreme Court held that CDC’s claim that this statute
granted it authority to halt evictions nationwide “strain[ed] credulity.” 141 S.Ct. at 2486. See also
Tiger Lily, LLC v. U. S. Dep’t of Housing and Urban Development, 5 F.4th 666, 670 (6th Cir.
2021) (“We cannot read § 264(a) to grant the CDC the power to insert itself into the landlord-
tenant relationship without clear textual evidence of Congress’s intent to do so.”).
110.
This case is very similar to Alabama Association and Tiger Lily. “If it ‘strains
credulity’ that this statutory language authorizes a nationwide eviction moratorium, a fortiori, it
strains credulity to say that this language authorizes the Surgeon General to urge Twitter and other
speech platforms to take down speech with which the government disagrees in violation of those
speakers’ First Amendment rights.”
111.
Nothing in this statute permits the Surgeon General to determine what constitutes
health misinformation; to direct social media companies to censor ostensible “misinformation”; to
work with social media companies to censor this material and silence or de-boost accounts with
whom he disagrees; or to demand that these companies turn over private (or public) information
collected from users. See also Kentucky v. Biden, __F.Supp.3d__, 2021 WL 5587446 (E.D.
Kentucky 2021) (holding that Biden’s vaccine mandate for federal contractors, which
commandeered the Procurement Statute, exceeded authority delegated through the statute by
Congress, as did the OSHA vaccine mandate, and was therefore invalid; “neither OSHA nor the
executive branch is permitted to exercise authority it does not have.”).
112.
This conclusion is reinforced by the fact, in the many decades since § 264 was
enacted, the Surgeon General never before interpreted that statute to authorize the regulation of
“misinformation.” Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324, 134 S. Ct. 2427, 2444, 189 L.
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Ed. 2d 372 (2014) (When an agency claims to discover in a long-extant statute an unheralded
power to regulate … we typically greet its announcement with a measure of skepticism.”).
113.
The Constitution provides that “[a]ll legislative Powers herein granted shall be
vested in a Congress of the United States.” U.S. Const. Art. I § 1.
114.
“The nondelegation doctrine bars Congress from transferring its legislative power
to another branch of Government.” Gundy v. United States, __U.S.__, 139 S.Ct. 2116, 2121
(2019).
115.
Congress may seek assistance from another branch, provided it establishes through
legislation “an intelligible principle to which the person or body authorized to [exercise the
delegated authority] is directed to conform.” J.W. Hampton, Jr. & Co v. United States, 276 U.S.
394, 406 (1928).
116.
Not only is this action unauthorized by Congress, but it could not have been
authorized by Congress, as it entails First and Fourth Amendment violations (see supra, Counts II
and III). See Poett, 657 F.Supp. at 241.
117.
Even if § 264 could somehow be construed a granting the Surgeon General with
power to order technology companies to turn over information about individuals accused of
spreading “misinformation”—it cannot—the lack of intelligible principle regarding what
constitutes misinformation means such an interpretation would violate the Constitution’s
nondelegation principle. Gundy, 139 S.Ct. at 2121.
118.
Indeed, the absence of guidance would transform the Surgeon General’s office into
the Ministry of Truth. “A construction of the statute that avoids this kind of open-ended grant
should certainly be favored.” Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607,
646 (1980).
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119.
Relatedly, the Surgeon General’s action is clearly ultra vires under the major
questions doctrine, which recognizes that Congress is expected “to speak clearly when authorizing
an agency to exercise powers of vast economic and political significance.” Alabama Association
of Realtors, 141 S.Ct. at 2486.
120.
An initiative that commandeers technology platforms to provide the Government
with users’ data (see Count II), that entails censoring speech and viewpoints on important, current
events and political issues, and that has a profound chilling effect (see Count I), is precisely such
a major question.
121.
As discussed above, Congress did not authorize the Surgeon General or HHS to
employ such a program.
122.
For these reasons, the Surgeon General and HHS have exceeded their delegated
authority (which in fact Congress could not give them) and this action therefore is ultra vires and
invalid.
COUNT II: THE SURGEON GENERAL’S INITIATIVE INSTRUMENTALIZES TECHNOLOGY
COMPANIES TO CENSOR USERS, IN VIOLATION OF THE FIRST AMENDMENT
123.
Plaintiffs incorporate by reference all of the preceding material as though fully set
forth herein.
124.
The First Amendment to the United States Constitution prohibits Congress from
making laws “abridging the freedom of speech.” U.S. Const., amend. I.
125.
“The First Amendment gives freedom of mind the same security as freedom of
conscience …. And the rights of free speech and free press are not confined to any field of human
interest.” Thomas v. Collins, 323 U.S. 516, 531 (1945); see also Knight First Amend. Inst., 928
F.3d at 237 (“As a general matter, social media is entitled to the same First Amendment protections
as other forms of media.”).
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126.
There is no question that the prohibition against restrictions on speech applies to all
branches of government. See Matal v. Tam, 137 S.Ct. 1744, 1757 (2017) (“The First Amendment
prohibits Congress and other government entities and actors from ‘abridging the freedom of
speech[.]’”); New York Times Co. v. United States, 403 U.S. 713, 714 (1971) (holding that Nixon
Administration’s attempt to prevent publication of classified information violated the First
Amendment).
127.
“Debate on public issues should be uninhibited, robust, and wide-open.” New York
Times Co., 376 U.S. at 270. See Brown v. Entm’t Merchants Ass’n, 564 U.S. 786, 790 (2011)
(“The Free Speech Clause exists principally to protect discourse on public matters[.]”).
128.
The First Amendment also protects the right to receive information. See Martin v.
U.S. E.P.A., 271 F.Supp.2d 38 (2002), quoting Virginia State Board of Pharmacy v. Virginia
Citizens Consumer Council, 425 U.S. 748, 756 (1976) (“where a speaker exists …, the protection
afforded is to the communication, to its source and to its recipients both.”).
129.
The right to receive information is “an inherent corollary of the rights to free speech
and press that are explicitly, guaranteed by the Constitution” because “the right to receive ideas
follows ineluctably from the sender’s First Amendment right to send them.” Board of Educ.,
Island Trees Union Free Sch. Dist. Number 26 v. Pico, 457 U.S. 853, 867 (1982). See also id.
(quoting Lamont v. Postmaster General, 381 U.S. 301, 308 (1965) (Brennan, J., concurring) (“The
dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to
receive and consider them. It would be a barren marketplace of ideas that had only sellers and no
buyers.”)).
130.
As the Supreme Court has recognized, “[a] fundamental principle of the First
Amendment is that all persons have access to places where they can speak and listen, and then,
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after reflection, speak and listen once more.” Packingham v. North Carolina, 127 S. Ct. 1730,
1735 (2017).
131.
“[A]s a general matter, … government has no power to restrict expression because
of its message, its ideas, its subject matter, or its content.” Ashcroft v. American Civil Liberties
Union, 535 U.S. 564, 573 (2002).
132.
It is “axiomatic” that the government may not “induce, encourage, or promote
private persons to accomplish what it is constitutionally forbidden to accomplish.” Norwood v.
Harrison, 413 U.S. 455, 465 (1973).
133.
In a similar vein, private actors are considered governmental when jointly engaged
with state actors to deprive an individual of his constitutional rights, Dennis v. Sparks, 449 U.S.
24 (1980) or where the state compels the act or controls the private actor.
134.
The Surgeon General and the Biden Administration have made clear that they
blame social media companies for American deaths, and they have threatened the companies with
criminal and regulatory consequences unless those companies censor the views of individuals
determined to be spreading what the Government deems to be “misinformation” in various ways
that the Administration has identified.
135.
It is evident that the technology companies fear those consequences, as they have
ramped up censorship of users—including Plaintiffs—deemed to have spread COVID
“misinformation” following various public statements of individuals within the Biden
administration, including Psaki and Murthy.
136.
The censorship is entirely viewpoint based and one-sided, as only individuals who
oppose government-imposed COVID-19 mitigation measures and question the efficacy and safety
of the vaccines are suspended.
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137.
By instrumentalizing tech companies including Twitter—through pressure,
coercion, and threats—to censor viewpoints that the federal executive has deemed
“misinformation,” the Surgeon General has turned Twitter’s censorship into State action. See
Hammerhead Enterprises v. Brezenoff, 707 F.2d 33, 39 (1983) (“Where comments of a
government official can reasonably be interpreted as intimating that some form of punishment or
adverse regulatory action will follow the failure to accede to the official’s request, a valid claim
can be stated … Similarly, claimants who can demonstrate that the distribution of items containing
protected speech has been deterred by official pronouncements might raise cognizable First
Amendment issues.”); Bantam Books v. Sullivan, 372 U.S. 58, 62 (1963) (finding First
Amendment violation when a private bookseller stopped selling works that state officials deemed
“objectionable” after they sent him a veiled threat of prosecution). See also Knight First
Amendment Institute, No. 20-197, 593 U.S.___ (Thomas, J., concurring) (“[I]f the government
coerces or induces [a private entity] to take action the government itself would not be permitted to
do, such as censorship expression of a lawful viewpoint,” the First Amendment is implicated.).
138.
Twitter has permanently silenced Mr. Senger, and temporarily silenced Mr. Kotzin
and Mr. Changizi, at Defendants’ behest.
139.
Mr. Changizi also has been de-boosted on Twitter and other social media platforms
(YouTube, Instagram), at the Government’s instruction (Ironic given the views of Defendants on
“boosting.”)
140.
Not only is the Government responsible for overt censorship, but the Surgeon
General’s initiative has a profound chilling effect.
141.
Government action that chills speech—especially political speech—for fear of
adverse consequences violates the First Amendment. Citizens United v. Federal Election Com’n,
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558 U.S. 310, 329 (2010) (political speech “is central to the meaning and purpose of the First
Amendment.”). See Virginia v. Black, 538 U.S. 343, 365 (2003) (holding that provision
prohibiting flag-burning “chills constitutionally protected political speech … [which is] at the core
of what the First Amendment is designed to protect.”).
142.
To the extent that Mr. Kotzin and Mr. Changizi are still able to use their Twitter
accounts, they constantly fear losing them, and curtail their expression accordingly. Penny Saver
Publications, Inc. v. Vill of Hazel Crest, 905 F.2d 150, 154 (7th Cir. 1990) (“Constitutional
violations may arise from the chilling effect of governmental regulations that fall short of a direct
prohibition against the exercise of First Amendment rights.”).
143.
All three Plaintiffs have been deprived of their First Amendment right to receive
information, including from each other, due to the atmosphere of censorship. That is especially so
for Mr. Senger, who has been entirely excluded from participating in discourse on Twitter.
144.
Once again, that is because Twitter is suspending accounts not only at the
instruction of the Government and based on the Government’s rubric, but also because it fears
reprisal from the Government.
145.
Accordingly, the Government’s coercive actions directed at Twitter are continually
violating Plaintiffs’ First Amendment Rights.
146.
Defendants have violated and are continuing to violate Plaintiffs’ First Amendment
rights to free speech and free expression, and to receive information.
COUNT III: THE SURGEON GENERAL’S RFI CONSTITUTES A SEARCH IN VIOLATION OF THE
FOURTH AMENDMENT
147.
Plaintiffs incorporate by reference all of the preceding material as though fully set
forth herein.
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148.
The Fourth Amendment to the United States Constitution prohibits “unreasonable
searches and seizures,” and provides that “no warrants shall issue, but upon probable cause.”
149.
The Fourth Amendment “seeks to secure the privacies of life against arbitrary
power.” See Carpenter v. United States, 138 S.Ct. 2206, 2214 (2018) (internal citations and
quotation marks omitted).
150.
The central aim of the Fourth Amendment was “to place obstacles in the way of a
too permeating police surveillance.” United States v. Di Re, 332 U.S. 581, 595 (1948).
151.
A search occurs when an individual has a subjective expectation of privacy, and
that expectation of privacy is one that society views as reasonable. California v. Ciraolo, 476 U.S.
207 (1986); United States v. Jacobsen, 466 U.S. 109 (1984).
152.
Courts, including the Supreme Court, widely recognize that individuals have a
reasonable expectation of privacy in digital records, including those given to private companies.
See Carpenter, 138 S.Ct. 2206.
153.
“A person does not surrender all Fourth Amendment protection by venturing into
the public sphere.” Carpenter, 138 S.Ct. at 2217.
154.
On the contrary, “what [one] seeks to preserve as private, even in an area accessible
to the public, may be constitutionally protected.” Katz v. United States, 389 U.S. 347, 351-52
(1967).
155.
Nor does the fact that the information in question may have been voluntarily given
to third parties mean that the Fourth Amendment is inapplicable when the Government seeks that
data. See Carpenter, 138 S.Ct. at 2219 (rejecting Government’s contention that cell-site records
are “fair game” because they are “business records” created and maintained by wireless carriers
and finding that a warrant is needed for such a search).
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156.
Here, Defendants have demanded that Twitter (and other social media companies)
provide them with “sources of misinformation” by May 2, without a warrant or probable cause.
See Carpenter, 138 S.Ct. at 2221.
157.
Defendants have provided no more specific indication of precisely what
information about users it is seeking or planning to collect, nor do they have probable cause to
believe Plaintiffs have committed any sort of crime, nor have they obtained a search warrant.
158.
Plaintiffs have a reasonable expectation of privacy in the information they provided
to Twitter—and that they did not agree to make available to the United States Government. See
Riley v. California, 573 U.S. 373, 403 (2014) (holding that warrants are required to search cell
phones, as “[w]ith all they contain and all they may reveal, they hold for many Americans the
privacies of life … The fact that technology now allows an individual to carry such information in
his hand does not make the information any less worthy of the protection for which the Founders
fought.”) (internal citations and quotation marks omitted).
159.
As mentioned, Twitter has access to users’ information—including that which is
not made public—and which Plaintiffs did not agree to turn over to the Government.
160.
The Government’s action thereby constitutes an unlawful search under the Fourth
Amendment to the United States Constitution.
COUNT IV: UNLAWFUL AGENCY ACTION IN VIOLATION OF THE ADMINISTRATIVE PROCEDURE
ACT
161.
Plaintiffs incorporate by reference all of the preceding material as though fully set
forth herein.
162.
Under the Administrative Procedure Act (APA), this Court is authorized to hold
unlawful and set aside agency action, findings, and conclusions that it determines to be contrary
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to constitutional rights or in excess of statutory jurisdiction, authority, or limitations, or short of
statutory right. See 5 U.S.C. §§ 706(2)(B), (C).
163.
Also under the APA, agency action made reviewable by statute and final agency
action for which there is no other adequate remedy in a court are subject to judicial review. See 5
U.S.C. § 704.
164.
Agency action is final if first it “marks the ‘consummation’ of the agency’s
decisionmaking process.” Bennett v. Spear, 520 U.S. 154, 178 (1997) (quoting Chicago &
Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103. 113 (1948)).
165.
Second, the action must be one by which “‘rights or obligations have been
determined,’ or from which ‘legal consequences will flow.’” Bennett, 520 U.S. at 178 (quoting
Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71
(1970)).
166.
The Surgeon General’s initiative (encompassed by the July Advisory, the March
RFI, and the continuous pressure on social media companies at least throughout that time but likely
before) constitutes final agency action under the APA.
167.
In no uncertain terms, social media platforms have been instructed that they are to
censor those who propagate what the Government has deemed “misinformation”—that constitutes
an “obligation.” See Bennett, 520 U.S. at 178.
168.
Lest there be any doubt, consider the following statements pertaining to the Surgeon
General’s initiative:
a. “We’re asking [tech companies] to consistently take action against
misinformation superspreaders.” (Murthy).
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b. “We’ve increased disinformation research and tracking within the Surgeon
General’s office. We’re flagging problematic posts for Facebook that spread
disinformation.” (Psaki).
c. “There are proposed changes that we have made to social media platforms,”
including “a robust enforcement strategy” and taking “faster action against
harmful posts.” (Psaki).
d. “tech and social media companies must do more[.]” (Murthy).
e. “Clearly [they haven’t done enough], because we’re talking about additional
steps that should be taken.” (Psaki).
f. Social media companies are “killing people.” (Biden).
169.
For similar reasons, this action clearly constitutes “consummation” of the agency’s
decisionmaking process and is not tentative or interlocutory. See Franklin v. Massachusetts, 505
U.S. 788, 797 (1992) (“The core question is whether the agency has completed its decisionmaking
process, and whether the result of that process is one that will directly affect the parties.”).
170.
Furthermore, the Surgeon General’s initiative is substantive, because it affects legal
rights (see Counts I and III).
171.
Substantive policies must undergo notice and comment. The Surgeon General has
not subjected his initiative to notice and comment.
172.
The Surgeon General’s initiative is also arbitrary and capricious because it is being
deployed to favor the Government’s viewpoints.
173.
The Plaintiffs in this case have obviously been affected by the agency’s actions, as
they have all been suspended from Twitter for spreading “misinformation” related to COVID-19
in the period when Twitter stepped up its enforcement in response to the Surgeon General’s threats.
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174.
Mr. Changizi and Mr. Kotzin, who still have access to their accounts, operate them
while fearing permanent suspension, causing them to self-censor. See supra Count I. They are
also no longer able to learn and benefit from Mr. Senger’s Twitter feed (not to mention the
perspectives of many other users who have been permanently suspended).
175.
Nothing in the governing statute gives or purports to give HHS or the Surgeon
General the power or authority to coerce technology companies to censor users or to demand that
they hand their private user information (as opposed to public Tweets) over to the Government.
176.
Furthermore, for the reasons discussed in Counts I, II and III, the Surgeon General’s
actions violate Plaintiffs’ constitutional rights.
177.
In sum, the entire initiative is in excess of any statutory authority and therefore
invalid under the APA. See 5 U.S.C. §§ 706(2)(B), (C).
PRAYER FOR RELIEF

Plaintiffs respectfully request that the Court enter judgment in their favor and grant the
following relief:
A.
A declaration that Defendants’ policy of pressuring Twitter to censor Plaintiffs’
accounts violates the First Amendment of the United States Constitution;
B.
A declaration that the Surgeon General’s entire misinformation campaign
constitutes ultra vires action lacking statutory authority, and that Defendants’
statutory interpretation runs afoul of the nondelegation and major questions
doctrines;
C.
A declaration that Defendants’ RFI demand that Twitter and other companies turn
over information about “sources of misinformation” by May 2 constitutes a search
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in violation of the Fourth Amendment and would require a warrant approved by a
court of law;
D.
A declaration that the Surgeon General’s campaign violates the Administrative
Procedure Act and therefore is unlawful and invalid; and setting aside the RFI as a
violation of the APA;
E.
Injunctive relief restraining and enjoining Defendants, their officers, agents,
servants, employees, attorneys, and all persons in active concert or participation
with them (see Fed. R. Civ. P. 65(d)(2)), and each of them, from enforcing
coercive or otherwise pressuring policies or conditions similar to those described
above that exert pressure upon Twitter and other technology companies to censor
users;
F.
A declaration that Twitter and other social media companies are under no
obligation to censor content (especially content deemed COVID-19
misinformation) and will not be penalized if they do not engage in viewpoint-
based censorship;
G.
Nominal damages of $1 each;
H.
Attorney’s fees pursuant to 42 U.S.C. § 1988; and
I.
Any other just and proper relief.
JURY DEMAND

Plaintiffs herein demand a trial by jury of any triable issues in the present matter.
March 24, 2022

Respectfully submitted,

/s/ Angela Lavin
Angela M. Lavin (0069604)
Case: 2:22-cv-01776-EAS-CMV Doc #: 1 Filed: 03/24/22 Page: 37 of 38 PAGEID #: 37

Jay R. Carson (0068526)
Local Counsel
WEGMAN HESSLER LPA
6055 Rockside Woods Boulevard North
Suite 200
Cleveland, Ohio 44131
Telephone: (216) 642-3342
Facsimile: (216) 642-8826
AMlavin@wegmanlaw.com
JRCarson@wegmanlaw.com

And

/s/Jenin Younes
Jenin Younes*
Litigation Counsel
NEW CIVIL LIBERTIES ALLIANCE
1225 19th Street NW, Suite 450
Washington, DC 20036
Telephone: (202) 869-5210
Facsimile: (202) 869-5238
jenin.younes@ncla.legal

Pro hac vice application pending
* Admitted only in New York. DC practice
limited to matters and proceedings before
United States courts and agencies.
Practicing under members of the District of
Columbia Bar.

Attorneys for Plaintiff

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