LADPH Prevails in First Amendment Lawsuit: Judge Has No Idea How Politics Works

In a stunning decision, a Los Angeles County Superior Court judge has sided with the egregious Los Angeles County Department of Health (LADPH) and ruled it did not violate the First Amendment rights of county residents when it shut down it social media public comments and cajoled Twitter into axing an account that questioned the wisdom of the draconian pandemic response.

The decision is even more stunning considering the fact that the county – right before the trial began in October – offered to settle the case for cash, but no acknowledgement of responsibility and/or improper action. The plaintiffs – the Alliance of Los Angeles County Parents – and their attorney, Julie Hamill, refused.

“It was only money and we we’re – and still are – about safeguarding the constitutional rights of everyone in Los Angeles and across the nation,” Hamill said.

The Alliance sued Barbara Ferrer’s LADPH for two reasons:  First, the department shut off the “public comments” sections of its social media sites in July, 2022.  This move was clearly caused by the negative feedback it was receiving regarding a possible re-imposition of a mask mandate, a move even actual (Ferrer’s doctorate is in the public health field, she thinks) county/USC doctors was not justified by the COVID-related traffic they were seeing at their hospital.

Second, after the comments were turned off, Alliance members started a Twitter (now X) page that would re-post tweets from the LADPH and allow the public to comment on them.  That account was shut down by Twitter after the LADPH contacted the company.

Judge William Fahey found, in his tentative ruling, that the department was within its rights to shut off all public comments, even though the Alliance argument was that they were shut off purely to stifle dissent.  There is case law supporting Fahey on this ruling, but there is also precedent stating that, while a government agency can have comments open or closed, it cannot close them to squash a specific viewpoint.

The department was very pleased with the decision, saying “We are grateful that the Court has issued a ruling that indicates it has determined that the Los Angeles County Department of Public Health has the ability to manage its social media pages to provide a safe space for the County’s 10 million residents to receive critical public health-related information. This decision ensures that Public Health’s social media pages will remain a trusted resource that includes data-driven information that the public can rely on to make informed decisions about their health and the health of their families.”

Trusted source may be a bit of a stretch – the department Facebook page featured ads – disguised as “reviews” – for herbal HIV cures.

Also a bit of stretch considering Ferrer herself testified that what is “misinformation” to her may not be “misinformation” to another person.

As to the Twitter issue, Fahey ruled that requests made by Ferrer communications director Brett  Morrow was not in and of itself  “coercive” to the point of being improper, despite the involvement of the office of Congressman Adam Schiff, then chair of the House Intelligence Committee, a committee that is involved in the regulation of Twitter.

“The word choice and tone of these (Morrow) emails (to Twitter) was polite, non- threatening, professional (as Alliance concedes) and deferential. Next, there is nothing in Twitter’s responsive emails to suggest that it felt threatened or coerced. Instead, Twitter’s responses showed that it was dealing with routine and standard requests,” Fahey wrote.

In this the judge’s decision fails to pass the reality test.

Just the name of “Adam Schiff” attached to email sent directly to a Twitter executive would be enough to get the company to treat the LADPH request very differently from just an ordinary person’s.  Schiff had a history of bullying, of making demands of Twitter to remove things he didn’t like, and he had the power – through his position as chair of the committee – to force the issue.

“I’m troubled by the court’s conclusion that a government entity can shut down a public forum for a viewpoint discriminatory purpose,” said Hamill.  “Government doesn’t like what’s being said in a public forum? Just shut it down!”

Hamill said she was very concerned about the lack of a “level playing field” in First Amendment matters.

“It’s hard to prove your case when a multi-billion dollar company’s lawyers threaten to sue you personally if you use any of the documents they produced. It’s hard to argue the facts when the court seals records that should be in the public domain. It’s hard to win when the government and big tech unite behind the same lawyers to strategize against citizens,” said Hamill. “If there is a silver lining it is that we exposed the underbelly of the County’s operations, although we merely scratched the surface. The County never produced a single email between Ferrer and Morrow. Not one. They exist, and under the Public Records Act, we are entitled to see them.”

The case was seen as a miniature Missouri v. Biden, the massive federal COVID-related censorship case the United States Supreme Court is expected to take up in the spring.  The plaintiffs in that case have already  – for the most part – prevailed at the district and appeals court levels, having shown the pervasive and unconstitutional federal efforts to throttle free speech in regard to the pandemic.

Dr. Jay Bhattacharya, a Stanford University professor of medicine, is one of the personal plaintiffs in the case as he was intentionally singled out for social media censorship by the government.  He was hoping for a different ruling in the Alliance case, but understands that the federal case involves very specific and direct regulatory oversight powers that could be used to seriously, significantly, and immediately damage social media companies.

Still, though, “why would the department have bothered to use Schiff’s office, to mention Schiff at all?” if not to at least imply a threat, said Bhattacharya.  

Note – as a former elected official myself I can vouch for the very simple fact that those whom you are involved in regulating will jump to satisfy the powers that be in almost any demand.  Name-dropping may be a fun game to impress friends at cocktail parties, but in political circles it is always done to imply a threat or ask a favor.  A small real world tip for the judge for the future.

Bhattacharya said the ruling is bad news not just for people concerned about the issue of trust in public health, but about all aspects of government because:

“LA County now has free rein to censor any American who criticizes it.” 

Hamill is already working on her appeal.