UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ASSOCIATION OF AMERICAN : PHYSICIANS & SURGEONS, et al., : : Plaintiffs, : Civil Action No.: 20-106 (RC) : v. : Re Document Nos.: 13, 19 : ADAM SCHIFF, in his individual capacity : and his official capacity as a Member of : Congress for the 28th Congressional District : of California, : : Defendant. :

MEMORANDUM OPINION

GRANTING DEFENDANT’S MOTION TO DISMISS

I. INTRODUCTION

In this case the Association of American Physicians and Surgeons (“AAPS”) and

Katarina Verrelli (together “Plaintiffs”) allege that Congressman Adam Schiff violated their First

Amendment rights and abused his power as a Member of Congress. Plaintiffs claim that

Congressman Schiff used his position to coerce technology companies to discriminate against

AAPS based on the content of AAPS’s speech related to vaccines. This discrimination, they

contend, limited Ms. Verrilli’s ability—and the ability of those similarly situated—to

conveniently access information about vaccines. According to Plaintiffs, Congressman Schiff

made public statements that all but forced various technology companies, including Google,

Facebook, Amazon, and Twitter, to interfere with and burden their First Amendment rights.

Congressman Schiff has moved to dismiss, arguing that Plaintiffs fail to clear several

jurisdictional hurdles and, in any event, fail to state a plausible claim to relief. For the reasons set forth below, the Court finds that Plaintiffs lack Article III standing and that their claims are

barred by the Speech or Debate Clause of the U.S. Constitution. Accordingly, the Court grants

Congressman Schiff’s motion to dismiss.

II. BACKGROUND

According to the Amended Complaint, AAPS “is a not-for profit membership

organization . . . founded in 1943 to preserve the practice of private medicine, ethical medicine,

and the patient-physician relationship.” Am. Compl. ¶ 3, ECF No. 17. AAPS is “a publisher of

information related to the medical field” and has members who are “physicians nationwide in

nearly all types of practices and specialties” in addition to members who “do not practice

medicine.” Id. According to Plaintiffs, “AAPS and its physician members are not ‘anti-vaccine’

but rather favor informed consent based on disclosure of all relevant legal, medical, and

economic information.” Id. AAPS has published a number of articles on vaccines for well over

a decade, including several more recent articles published in early 2019. See id. ¶¶ 60–61. Ms.

Verrilli is a resident of New York, id. ¶ 4, who “has long been interested in accessing full

information about vaccination and using the internet for accessing information about safety and

efficacy of vaccination,” id. ¶ 62.

Plaintiffs take issue with several actions taken by Congressman Schiff. The Court will

summarize those actions in chronological order. First, on February 14, 2019, Congressman

Schiff sent letters to Google and Facebook “to encourage them to use their platforms to prevent

what [Congressman] Schiff asserted to be inaccurate information on vaccines.” Id. ¶ 68. The

letters requested information about what actions the companies currently take to address

misinformation about vaccines on their platforms. See id.; see e.g., Letter from Hon. Adam B.

Schiff to Sundar Pichai, Chief Executive Officer, Google (Feb. 14, 2019),

2 https://schiff.house.gov/news/press-releases/schiff-sends-letter-to-google-facebook-regarding-

anti-vaccine-misinformation. Second, on March 1, 2019, Congressman Schiff sent a letter to

Amazon for what Plaintiffs allege was the same purpose. See Am. Compl. ¶ 69. The letter

requested the same information as the letters sent on February 14. See id.; see also Letter from

Hon. Adam B. Schiff to Jeffrey Bezos, Chief Executive Officer, Amazon (Mar. 1, 2019) (“Letter

to Bezos”), https://schiff.house.gov/news/press-releases/schiff-sends-letter-to-amazon-ceo-

regarding-anti-vaccine-misinformation. Third, on March 7, 2019, Congressman Schiff issued a

press release that included the responses to his letters from personnel from Google and

Facebook. See Am. Compl. ¶ 71. Finally, on June 13, 2019, at a hearing of the House

Permanent Select Committee on Intelligence, Plaintiffs claim that Congressman Schiff, who

chairs the committee, “challenged the immunity that interactive computer services have under

Section 230 of the [Communication Decency Act of 1996] and asked panelists if Congress

should make changes to that immunity.” Id. ¶ 65. Plaintiffs allege that Congressman Schiff’s

statements were intended to put the technology companies “on notice that they would need to

comply with Congressman Schiff’s position or risk his undertaking legislative action against

[Section 230].” Id. ¶ 66. None of Congressman Schiff’s public statements specifically

mentioned AAPS.

Plaintiffs claim that a number of technology companies took several adverse actions

against them because of Congressman Schiff’s statements. The Court summarizes these actions

in chronological order as well. First, on March 1, 2019, “Amazon removed from its platform for

streaming videos the popular videos Vaxxed and Shoot ‘Em Up: The Truth About Vaccines.” 1 Id.

1 The Amended Complaint does not describe any AAPS ownership or other interest in these titles.

3 ¶ 72. Second, on Facebook, “pursuant to new restrictions announced March 7, 2019, and

released in September of 2019, a search for the URL to an AAPS article on vaccines now

produces search results containing two World Health Organization links, a National Institutes of

Health link, and a link for the Centers for Disease Control and Prevention.” Id. ¶ 76. Third, “in

May of 2019, Twitter . . . now includes a pro-government disclaimer 2 placed above search

results for an AAPS article on vaccine mandates.” Id. ¶ 74. Fourth, on August 9, 2019,

“Amazon suddenly announced AAPS’s termination from the Amazon Associates Program.” 3 Id.

¶ 73. Finally, though they do not specify when this occurred, Plaintiffs claim that “[b]ecause of

the dominant market power of Google, 4 Facebook, Amazon, and Twitter, their actions against

AAPS’s vaccine-related materials resulting from [Congressman] Schiff’s coercion has

significantly depressed the internet traffic to the AAPS website.” Id. ¶ 78.

Plaintiffs allege that Congressman Schiff misused the power of his office to coerce

technology companies to discriminate against AAPS. Id. ¶ 88. They argue that he abused his

position “by making an implied threat” against technology companies, which forced them to

target AAPS based on the content of its publications. Id. ¶ 92–93. Congressman Schiff has

moved to dismiss the Amended Complaint. See Def.’s Mot. Dismiss, ECF No. 19; Def.’s Mem.

2 The disclaimer states: “Know the Facts. To make sure you get the best information on vaccination, resources are available from the US Department of Health and Human Services.” Id. ¶ 74. 3 According to Plaintiffs, the Amazon Associates Program “is one of the largest affiliate networks in the world to enable website owners to earn commissions based on their traffic.” Id. ¶ 73. Plaintiffs acknowledge that Amazon purportedly “terminated AAPS . . . [because] AAPS [] stated on the AAPS website that visitors can support AAPS by shopping on Amazon through AAPS’s links.” Id. ¶ 73. 4 Beyond this paragraph, Plaintiffs do not allege that Google took any adverse actions against AAPS.

4 Supp. Mot. Dismiss (“Def.’s Mem.”), ECF No. 19-1. 5 Congressman Schiff argues that Plaintiffs

lack standing, that the claims are precluded by the Speech or Debate Clause, that the claims are

barred by the doctrine of sovereign immunity, that the claims are not cognizable under the

Federal Tort Claims Act, and that the Amended Complaint fails to state a proper claim to relief.

See generally Def.’s Mem. Plaintiffs put forth arguments that this Court does have jurisdiction

to consider their claims and that the facts alleged plausibly state a claim to relief that should

survive a motion to dismiss. See generally Pls.’ Mem. Supp. Opp’n Mot. Dismiss (“Pls.’

Opp’n”), ECF No. 21-2. Congressman Schiff’s motion is ripe for decision.

III. LEGAL STANDARD

Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, courts must dismiss any

claim over which they lack subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Rule 12(b)(6),

by contrast, requires courts to dismiss any claim upon which relief could not be granted even if

jurisdiction was proper. Fed. R. Civ. P. 12(b)(6). When these two rules are invoked together, as

they are here, a court must first address the issues encompassed by Rule 12(b)(1), as those issues

implicate the court’s ability to hear the case at all. See, e.g., Schmidt v. U.S. Capitol Police Bd.,

, 64–65 (D.D.C. 2011).

The burden of establishing subject matter jurisdiction “rests upon the party asserting

jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994) (citations

omitted). In deciding whether the plaintiff has met this burden, courts “‘accept as true all of the

factual allegations contained in the complaint’ and draw all reasonable inferences” in the

plaintiff’s favor. Schmidt,

(quoting Brown v. District of Columbia, 514

5 Congressman Schiff also filed a motion to dismiss the initial complaint filed by Plaintiffs. See Def.’s Mot. Dismiss, ECF No. 13. Because Plaintiffs subsequently filed an amended complaint, the Court denies Congressman Schiff’s initial motion as moot.

, 1283 (D.C. Cir. 2008)). However, courts need not “accept inferences unsupported by

the facts alleged or legal conclusions that are cast as factual allegations.” Gregorio v. Hoover,

(D.D.C. 2017) (quoting Rann v. Chao,

(D.D.C.

2001)). Moreover, the allegations in the complaint “‘bear closer scrutiny in resolving a 12(b)(1)

motion’ than in resolving a 12(b)(6) motion for failure to state a claim.” Grand Lodge of

Fraternal Order of Police v. Ashcroft,

, 13–14 (D.D.C. 2001) (quoting 5A

Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350). Indeed,

because courts “have an independent obligation to determine whether subject-matter jurisdiction

exists,” Arbaugh v. Y&H Corp.,

(2006), they are not limited to the arguments

raised by the parties when considering a Rule 12(b)(1) motion, and they are free to consider

materials outside the pleadings, see, e.g., Jerome Stevens Pharms. v. FDA,

(D.C. Cir. 2005); see also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it

lacks subject-matter jurisdiction, the court must dismiss the action.”).

IV. ANALYSIS

The Court finds that Plaintiffs’ claims are jurisdictionally barred for two independent

reasons. First, Plaintiffs lack Article III standing. Under Supreme Court and D.C. Circuit

precedent, Plaintiffs have not established any of the elements required to demonstrate standing

and invoke the Court’s jurisdiction under Article III. Second, even if Plaintiffs could establish

standing, their claims are barred by the Speech or Debate Clause of the U.S. Constitution, which

provides absolute immunity for Members of Congress for claims predicated on legislative

activities. The Court addresses each jurisdictional barrier in turn. 6

6 The Court has determined it does not have jurisdiction because Plaintiffs lack standing and because the claims are barred by the Speech or Debate Clause. As such, it does not address

6 A. Standing

To invoke this Court’s jurisdiction, Plaintiffs must demonstrate that they have standing

under Article III of the U.S. Constitution, which limits the jurisdiction of federal courts to

consideration of cases or controversies. See Lujan v. Defenders of Wildlife,

(1992). The “irreducible constitutional minimum of standing contains three elements.”

. To have standing, “(1) [a plaintiff] must have suffered an injury in fact that is ‘concrete and

particularized’ and ‘actual or imminent, not conjectural or hypothetical’; (2) the injury must be

‘fairly traceable to the challenged action of [the defendant]’; and (3) ‘it must be likely, as

opposed to merely speculative, that the injury will be redressed by a favorable decision.’” N.B.

ex rel. Peacock v. District of Columbia,

(D.C. Cir. 2012) (quoting Lujan, 504

U.S. at 560–61). Where a lawsuit challenges the legality of government action, the standing

inquiry depends largely on “whether the plaintiff is himself an object of the action . . . at issue.”

Lujan,

. When a plaintiff is subject to the challenged action, “there is ordinarily

little question that the [government] action . . . has caused him injury, and that judgment

preventing . . . the action will redress it.”

at 561–62. But when a “plaintiff’s asserted injury

arises from the government’s allegedly unlawful regulation . . . of someone else, much more is

needed.”

. Standing in those cases “is ordinarily ‘substantially more difficult’ to

establish.”

(quoting Allen v. Wright,

(1984)).

The Court addresses below each of the three essential elements of Article III standing.

For the reasons that follow, the Court concludes that Plaintiffs have failed to establish any of the

required elements. Accordingly, the Court grants Congressman Schiff’s motion to dismiss.

the other jurisdictional arguments made by Congressman Schiff or assess the plausibility of Plaintiffs’ claims under Rule 12(b)(6).

7 1. Injury

To establish the first element of standing, injury in fact, “a plaintiff must show that he or

she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and

‘actual or imminent, not conjectural or hypothetical.’” Spokeo, Inc. v. Robins,

(2016) (quoting Lujan,

).

Beginning with Ms. Verrelli, Plaintiffs allege that she “has suffered from limitations on

her access on Facebook and Pinterest to information about the safety and efficacy of

vaccination,” Am. Compl. ¶ 4, and that she no longer can “conveniently access information

about vaccination,” id. ¶ 88. As Congressman Schiff rightly points out, however, Plaintiffs do

not allege “that Ms. Verrelli cannot access the materials she seeks nor provide[] any allegations

to demonstrate how accessing these materials has been made more difficult for her.” Def.’s

Mem. at 12. Plaintiffs do not describe how exactly accessing information on vaccination has

been made more difficult for Ms. Verrilli. They do not allege that she has lost access to

information on vaccinations. Plaintiffs make no attempt in their opposition brief to address this

deficiency. See Pls.’ Opp’n at 2–4 (discussing injury in fact without mentioning Ms. Verrilli).

The nebulous allegation that Ms. Verrilli—or any other person similarly situated—can no longer

“conveniently access information about vaccination,” Am. Compl. ¶ 88, is not “distinct and

palpable,” Warth v. Seldin,

(1975). As such, Plaintiffs have not shown that

Ms. Verrelli has suffered an invasion of a legally protected interest that is “‘real’ and not

‘abstract,’” Spokeo,

(quoting Lujan,

n.1)), and, therefore, they

have failed to establish that Ms. Verrelli suffered an injury in fact.

Plaintiffs’ attempts to establish injury in fact for AAPS fair no better. They offer three

potential injuries they claim stem from Congressman Schiff’s conduct. First, Plaintiffs argue

8 that Congressman Schiff inflicted a direct injury on AAPS by interfering with the organization’s

ability to contract and negotiate with technology companies regarding their vaccine content.

Pls.’ Opp’n at 3–4. But the Amended Complaint contains no allegations (1) that AAPS has

attempted to contract or negotiate with the third-party technology companies, (2) that any

specific contracts or negotiations were disrupted by Congressman Schiff’s comments, or (3) that

AAPS has any concrete plans to contract or negotiate with the third parties in the future. See

Am. Compl. ¶¶ 17–18. As the Supreme Court has explained, “‘some day’ intentions—without

any description of concrete plans, or indeed even any specification of when the some day will

be—do not support a finding of the ‘actual or imminent’ injury that our cases require.” Lujan,

. Perhaps if AAPS attempted to initiate contract negotiations with the technology

companies, it would find no impediment whatsoever. Plaintiffs’ allegations about interference

with their efforts to contract and negotiate are far too speculative to establish injury in fact. See

Spokeo,

(“[A] plaintiff must show that he or she suffered ‘an invasion of a

legally protected interest’ that is . . . ‘actual or imminent, not conjectural or hypothetical.”

(quoting Lujan,

)).

Second, Plaintiffs allege they have suffered a monetary injury due to decreased internet

traffic. See Am. Compl. ¶ 9–11 (alleging that AAPS depends on internet traffic to raise funds

and “the visits to the AAPS website declined significantly since March 2019”). Accepting the

factual allegation that internet traffic has decreased as true, Plaintiffs still do not plead any facts

that suggest AAPS actually suffered any monetary injury. AAPS has not claimed any actual

decrease in membership dues or donation revenues from its website 7 and asks the Court to rely

7 In fact, Plaintiffs claim that user interaction with AAPS’s “non-vaccination content held steady.” Am. Compl. ¶ 11. An organization must show a “concrete and demonstrable injury to [it’s] activities that is more than simply a setback to the organization’s abstract social interests.”

9 on “basic economic logic” to infer a monetary injury. 8 See Pls.’ Opp’n at 3 (quoting Shays v.

FEC,

(D.C. Cir. 2005)). The Court declines to do so and “reject[s] as overly

speculative,” and therefore conjectural, Plaintiffs’ “assumption regarding the future behavior of

third parties,” hypothetical potential website visitors. 9 Turlock Irrigation Dist. v. FERC,

(D.C. Cir. 2015).

Finally, Plaintiffs allege that Congressman Schiff caused a violation of their First

Amendment rights to free speech and association. But Plaintiffs do not allege any concrete

limitation on their rights to speak or associate. 10 Nothing in the Amended Complaint suggests

that AAPS can no longer publish information about vaccines. Although Plaintiffs claim that

internet traffic has decreased, they do not allege that the AAPS website cannot be located

through an internet search or identify any specific actions taken by Google or any other search

Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity,

(D.C. Cir. 2017). Plaintiffs’ failure to allege actual monetary harm is conspicuous, and their filings suggest that their real grievance is with perceived constraints on their dissemination of specific vaccine-related content. See, e.g., Am. Compl. ¶¶ 11, 16 (alleging reputational injury because some of their “accurate” content has been implicitly, incorrectly labelled as anti- vaccination or misinformation). “Frustration of an organization’s objective[]”—here, advancing an alternative perspective on vaccines—“is the type of abstract concern that does not impart standing.” Nat’l Taxpayers Union, Inc. v. United States,

(D.C. Cir. 1995). 8 In the Amended Complaint, Plaintiffs also allege a monetary injury to AAPS in the form of lost potential commissions because it was terminated from the Amazon Associates Program in August 2019. Am. Compl. ¶ 73. This claim also fails: AAPS has not alleged any actual loss of commissions nor explained loss of potential commissions constitutes a concrete and particularized legal injury. A mere conclusory allegation of the lost hypothetical chance to make money does not suffice to establish injury in fact. 9 In Freedom Watch, Inc. v. Google, Inc., the court found the plaintiffs established standing where the complaint alleged that the organization at issue saw “the growth of its audience and revenues generated from the [technology companies’] platforms” come to a halt.

(D.D.C. 2019) (emphasis added), aff’d, 816 Fed. App’x 497 (D.C. Cir. 2020). This case offers no support to Plaintiffs where they have alleged no concrete reduction in revenues. 10 Although Plaintiffs allege that Amazon removed two videos from its streaming service, they do not allege any legal interest in either video.

10 engine that led to the decreased traffic. Moreover, Plaintiffs do not explain how Facebook’s

addition of links to the World Health Organization, the National Institutes of Health, and the

Centers for Disease Control and Prevention to search results burdens their constitutional rights

nor do they explain how Twitter’s addition of a disclaimer constitutes an “‘invasion of a legally

protected interest’ that is ‘concrete and particularized.’” Spokeo,

(quoting

Lujan,

).

Plaintiffs have failed to establish an injury in fact sufficient to support standing. But even

assuming, arguendo, that any of their alleged injuries were judicially cognizable, Plaintiffs

cannot establish the other two constitutional requirements for standing.

2. Causation

To satisfy the Article III causation requirement, a plaintiff must show that the alleged

injury is “fairly traceable to the challenged action of the defendant, and not the result of the

independent action of some third party not before the court.” Lujan,

(alterations

omitted) (quoting Simon v. E. Ky. Welfare Rights Org.,

, 41–42 (1976)). In other

words, a plaintiff must establish that it is “substantially probable that the challenged acts of the

defendant, not of some absent third party” caused or will cause the injury alleged. Fla. Audubon

Soc’y v. Bentson,

(D.C. Cir. 1996).

Plaintiffs cannot satisfy the causation element of standing because all the alleged harms

stem from the actions of parties not before the Court, not from Congressman Schiff. Plaintiffs’

case depends on an analytical leap based on bald speculation rather than allegations of fact. The

open letters and public statements made by Congressman Schiff do not mention AAPS, 11 do not

11 Given that Congressman Schiff has never mentioned AAPS or identified the organization as “anti-vaccine,” it is not clear why AAPS would worry about his comments

11 advocate for any specific actions, and do not contain any threatening language. See, e.g., Letter

to Bezos. Despite this, Plaintiffs allege that, through the open letters and public comments,

Congressman Schiff coerced several companies to take specific actions against AAPS. See Am.

Compl. ¶ 73 (alleging Amazon terminated AAPS from the Amazon Associates Program); id. ¶

74 (alleging Twitter “now includes a pro-government disclaimer placed above search results for

an AAPS article”); id. ¶ 76 (alleging that a search on Facebook for an AAPS article now

produces search results to various government sources). Also central to Plaintiffs’ theory of

coercion are Congressman Schiff’s comments at a hearing that “challenged the immunity that

interactive computer services have under Section 230.” Id. ¶ 65. Plaintiffs contend that the

technology companies understood these comments, which did not mention AAPS or vaccines,

“to require acceding to [Congressman Schiff’s] wishes on other fronts, such as the actions

against his disfavored material on vaccinations on their platforms.” Id. ¶ 67. These allegations

are not plausible and ignore the innumerable other potential causes for the actions taken by the

technology companies. 12 The Court agrees with Congressman Schiff that “Plaintiffs point to no

facts to support a conclusion that [Congressman Schiff’s] letters asking for information could

reasonably be the cause of any of their alleged injuries by independent third-party actors.”

Def.’s Mem. at 15. Article III requires that an alleged injury “fairly can be traced to the

specifically directed at “medically inaccurate information about vaccines.” See Letter to Bezos. According to Plaintiffs, AAPS is not “anti-vaccine.” Am. Compl. ¶ 59. 12 As Congressman Schiff points out, the comments at the hearing, which took place on June 13, 2019, occurred after the technology companies took many of the actions described in the Amended Complaint. Def.’s Mem. at 17. Amazon removed the videos on March 1, 2019, Am. Compl. ¶ 72, Twitter added a disclaimer in May of 2019, id. ¶ 74, and Facebook added government links to search results pursuant to a policy announced March 7, 2019, id. ¶ 76. As such, on top of the other problems Plaintiffs have showing causation, they fail to establish a chronological chain of causation between the comments at the hearing and these actions taken by the technology companies.

12 challenged action of the defendant, and not injury that results from the independent action of

some third party not before the court.” Simon, 426 U.S. at 41–42. Plaintiffs fail to make this

showing and thus fail to establish causation for purposes of standing.

3. Redressability

Finally, to establish redressability, a plaintiff must show that it is “likely, as opposed to

merely speculative, that the injury will be redressed by a favorable decision.” Lujan,

(quotation marks omitted). The redressability element requires more than “mere[]

speculation as to what third parties will do in response to a favorable ruling.” Renal Physicians

Ass’n v. U.S. Dep’t of Health & Human Servs.,

(D.C. Cir. 2007).

Plaintiffs fail to establish redressability for the same reasons they fail to show causation.

It is pure speculation that any order directed at Congressman Schiff would affect the behavior of

the third-party technology companies not before the Court. Because Plaintiffs cannot show that

Congressman Schiff’s actions caused the technology companies to behave in a particular way,

they cannot establish that a remedy directed at his actions would result in the companies

changing their behavior. Plaintiffs have not shown that forcing Congressman Schiff to retract his

public statements—which, importantly, did not ever mention AAPS or call for any specific

action—would likely lead to any action by the technology companies. It is not plausible that

Google, Facebook, or Twitter (or any other technology company) would revise their policies on

medical misinformation simply because one congressman modifies his previous very generalized

public statements about vaccine misinformation. It is even more unlikely that a retraction of

public statements that never specifically mentioned AAPS would cause technology companies to

modify their treatment of AAPS. Klamath v. Water Users Ass’n v. FERC,

(D.C. Cir. 2008) (stating that where relief “depends on actions by a third party before the court,

13 the [plaintiffs] must demonstrate that a favorable decision would create a ‘significant increase in

the likelihood that the plaintiff would obtain relief that directly redresses the injury suffered.’”

(quoting Utah v. Evans,

(2002)). Because Plaintiffs’ allegations do not

demonstrate a significant increase in the likelihood that the relief sought against Congressman

Schiff will reverse the decline in internet traffic to AAPS’s site, reestablish its membership in the

Amazon Associates Program, cause social media platforms to cease the content moderation

policies allegedly infringing on their First Amendment rights, or remove a perceived obstacle to

negotiating with the technology companies, the Court finds Plaintiffs have failed to show

redressability. 13

B. Speech or Debate Clause

The Speech or Debate Clause of the Constitution (the “Clause”) states that “for any

Speech or Debate in either House, [Members of Congress] shall not be questioned in any other

Place.” U.S. Const. art. I, § 6, cl. 1. The Clause “reflects the Founders’ belief in legislative

independence.” Rangel v. Boehner,

(D.C. Cir. 2015) (citing United States v.

Brewster,

(1972)). The Clause “provides absolute immunity from civil suit”

and has been consistently read “broadly to achieve its purposes.”

(internal quotations

omitted) (citing Eastland v. U.S. Servicemen’s Fund,

, 502–03 (1975)). To this end,

13 Plaintiffs suggest that the Court should allow them to join the technology companies as defendants “so that they no longer would be independent third parties not before the Court.” Pls.’ Opp’n at 6. As Congressman Schiff notes in reply, Plaintiffs have known about his standing arguments since the filing of the first motion to dismiss. See Def.’s Reply at 8, ECF No. 22. Plaintiffs have known about the conduct of the independent third parties since they filed the initial complaint but chose not to add them as defendants in their Amended Complaint. Moreover, because the claims are independently barred by the Speech or Debate Clause, adding additional defendants would not even arguably cure this independent basis for dismissal. Regardless, leave to file an amended complaint is obtained by motion with the proposed amended complaint attached, D.D.C. Civ. R. 15.1, not by an aside buried in an opposition brief.

14 the Clause does not only apply to actual “Speech or Debate,” but also to all “legislative acts.”

Doe v. McMillan,

(1973). The Supreme Court has held that “a Member’s

conduct at legislative committee hearings . . . may not be made the basis for a civil or criminal

judgment against a Member because that conduct is within the sphere of legitimate legislative

activity.” Gravel v. United States,

(1972) (quotation marks omitted). The

D.C. Circuit has stated “information gathering, whether by issuance of subpoenas or field work

by a Senator or his staff, is essential to informed deliberation over proposed legislation.”

McSurely v. McClellan,

(D.C. Cir. 1976) (en banc). As such, “acquisition

of knowledge through informal sources is a necessary concomitant of legislative conduct and

thus should be within the ambit of the privilege.”

at 1287 (quoting Reinstein & Silverglate,

Legislative Privilege and the Separation of Powers,

, 1154 (1973)); see

also Jewish War Veterans of the U.S. of America, Inc. v. Gates,

(D.D.C.

2007) (“[A] Member’s gathering of information beyond the formal investigative setting is

protected by the Speech or Debate Clause so long as the information is acquired in connection

with or in aid of an activity that qualifies as ‘legislative’ in nature.”). Where a plaintiff’s claims

are predicated on legislative acts, the Clause “operates as a jurisdictional bar.” Howard v. Off. of

Chief Admin. Officer of U.S. House of Reps.,

(D.C. Cir. 2013).

Congressman Schiff first argues that because the Clause protects a Member’s conduct at

legislative committee hearings, he is absolutely immune from Plaintiffs’ claims stemming from

his conduct at the June 13, 2019 committee hearing. See Def.’s Mem. at 21 (citing Gravel,

). Next, Congressman Schiff claims that the information gathering letters sent to

technology companies also represent protected legislative activity. See

at 21–25. He argues

that “[a]ll three letters sought responses to the same specific questions concerning a matter on

15 which Congressman Schiff actively legislates, votes, and engages in other official

responsibilities.” Id. at 23. In response, Plaintiffs begin by citing precedent about the limitations

on the subpoena power of Congress. See Pls.’ Opp’n at 7–9. Plaintiffs make no effort to claim

that Congressman Schiff’s statements made during the committee hearing are not protected by

the Clause. They do contend, however, that Congressman Schiff sent the information gathering

letters with a “non-legislative purpose,” id. at 10, and that the Court should recognize his actions

as “an attack on viewpoints that he opposed,” id. at 12, rather than protected legislative activity.

In reply, Congressman Schiff argues that Plaintiffs fail to grapple with binding Supreme Court

and D.C. Circuit precedent that says information gathering is protected by the Clause. See Def.’s

Reply at 11–12.

The Court agrees with Congressman Schiff. First, his statements made during the June

13, 2019 committee hearing undoubtedly fall under the protection of the Clause. The Supreme

Court has held that “a Member’s conduct at legislative committee hearings . . . may not be made

the basis for a civil or criminal judgment against a Member because that conduct is within the

sphere of legitimate legislative activity.” Gravel,

. Plaintiffs make no attempt to

argue otherwise and the Court finds no special circumstances in this case that suggest it should

not apply the clear precedent.

Second, the Court finds that the information gathering letters constitute protected

legislative acts. Supreme Court and D.C. Circuit precedent make clear that investigating and

information gathering enjoy protection under the Clause. See Eastland,

(“[T]he

power to investigate is inherent in the power to make laws.”); McGrain v. Daugherty,

(1927) (“[A] legislative body cannot legislate wisely or effectively in the absence of

information respecting the conditions which the legislation is intended to affect or change.”);

16 Brown & Williamson Tobacco Corp. v. Williams,

(D.C. Cir. 1995) (“The

privilege also permits Congress to conduct investigations and obtain information without

interference from the courts.”); McSurely,

(“The acquisition of knowledge

through informal sources is a necessary concomitant of legislative conduct and thus should be

within the ambit of the privilege so that congressmen are able to discharge their constitutional

duties properly.” (citation omitted)). 14 Congressman Schiff plainly sent the letters for the

purpose of seeking information about a topic of great public concern. See Letter to Bezos (“As a

Member of Congress who is deeply concerned about declining vaccination rates around the

nation, I am requesting additional information on the steps that you currently take to provide

medically accurate information on vaccinations to your users . . . .”). Under binding Supreme

Court and D.C. Circuit precedent, Congressman Schiff enjoys immunity from suit for this

information gathering activity.

Plaintiffs’ arguments in opposition are unpersuasive. First, Plaintiffs argue that the

Supreme Court’s ruling in Trump v. Mazars USA, LLP,

(2020) suggests that

Congressman Schiff’s actions went beyond the limits of the congressional authority to

investigate. Pls.’ Opp’n at 7–8, 11–13. But as Congressman Schiff rightly points out, that case

“does not refer to the Speech or Debate Clause” or the scope of the immunity conferred by the

14 Courts in other circuits have also found that the Clause applies to information gathering. See, e.g., Miller v. Transamerican Press, Inc.,

(9th Cir. 1983) (“Obtaining information pertinent to potential legislation or investigation is . . . within the ‘legitimate legislative sphere.’” (quotation marks and citations omitted)); In re McLean, No. 18- 201,

, at *5 (D. Vt. 2019) (“The privilege also protects Congressional information gathering . . . .”); Citizens Union of New York v. Attorney Gen. of New York,

(S.D.N.Y. 2017) (“The legislative privilege also protects Congressional fact- and information-gathering activities about the subject of potential legislation[.]”); SEC v. Comm. on Ways and Means,

(S.D.N.Y. 2015) (“[T]he applicability of the Speech or Debate Clause’s protections does not hinge on the formality of the investigation.”).

17 Clause. Def.’s Reply at 9. Mazars, which considered whether congressional subpoenas seeking

the President’s personal financial information were enforceable, see 140 S. Ct. at 2026–28, has

no bearing on whether Congressman Schiff’s actions are protected legislative acts under the

Clause. See Judicial Watch, Inc. v. Schiff,

, 319 n.7 (D.D.C. 2020) (“[F]or

purposes of Speech or Debate Clause immunity . . . the Supreme Court’s resolution of [Mazars] .

. . has no bearing here.”). 15 For this reason, much of Plaintiffs’ argument misses the mark. See

Pls.’ Opp’n at 11–13 (discussing limitations on subpoena power outlined in Mazars).

Plaintiffs also contend that Congressman Schiff does not enjoy the implied power of

inquiry when acting on his own and that he exceeded the scope of his ability to investigate by

sending letters to the technology companies. Pls.’ Opp’n at 9–10. They suggest that his actions

do not enjoy protection because they lack the “integral nexus with legislation.” Id. at 10.

Plaintiffs’ conclusory statements about the purpose of Congressman Schiff’s letters are

unconvincing. Moreover, Plaintiffs fail to explain why, in light of the Supreme Court and D.C.

Circuit precedent regarding information gathering noted above, Congressman Schiff’s letters

seeking information are non-legislative. Congressman Schiff, for his part, points to a resolution

he proposed in the House of Representatives as the legislative nexus for the letters. See Def.’s

Mem. at 24 (“[O]n March 5, 2019, Congressman Schiff introduced House Resolution 179,

Recognizing the Importance of Vaccinations and Immunizations in the United States.”).

Plaintiffs make no response to Congressman Schiff’s argument. Instead, they make the bare

claim that Congressman Schiff’s letters have no connection to the legitimate legislative sphere.

15 For the same reason, the other cases Plaintiffs cite about the limits of congressional subpoena powers have no relevance. See Pls.’ Opp’n at 7–8. Plaintiffs do not allege that a congressional subpoena was issued. They fail to explain why cases dealing with the limits of Congress’s subpoena power should have any bearing on the immunity conferred by the Clause.

18 The Court disagrees and finds that Congressman Schiff’s actions constitute legislative acts

protected by the Clause. See McSurely,

(“The acquisition of knowledge

through informal sources is a necessary concomitant of legislative conduct and thus should be

within the ambit of the privilege so that congressmen are able to discharge their constitutional

duties properly.” (citation omitted)).

V. CONCLUSION

For the foregoing reasons, Defendant’s motion to dismiss (ECF No. 19) is GRANTED.

Defendant’s initial motion to dismiss (ECF No. 13) is DENIED AS MOOT. An order

consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: February 2, 2021 RUDOLPH CONTRERAS United States District Judge

19