Mark Changizi; Michael P. Senger; Daniel Kotzin v. Department of Health

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0214p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MARK CHANGIZI; MICHAEL P. SENGER; DANIEL
KOTZIN,
Plaintiffs-Appellants,
v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES;
VIVEK MURTHY, in his official capacity as U.S.
Surgeon General; XAVIER BECERRA, in his official
capacity as Secretary of Health and Human Services,
Defendants-Appellees.
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No. 22-3573
Appeal from the United States District Court for the Southern District of Ohio at Columbus.
No. 2:22-cv-01776—Edmund A. Sargus, Jr., District Judge.
Argued: June 15, 2023
Decided and Filed: September 14, 2023
Before: BOGGS, WHITE, and BUSH, Circuit Judges.
_________________
COUNSEL
ARGUED: John J. Vecchione, NEW CIVIL LIBERTIES ALLIANCE, Washington, D.C., for
Appellants. Daniel Winik, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellees. ON BRIEF: John J. Vecchione, Jenin Younes, NEW CIVIL LIBERTIES
ALLIANCE, Washington, D.C., for Appellants. Daniel Winik, Daniel Tenny, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. Lawrence S. Ebner,
ATLANTIC LEGAL FOUNDATION, Washington, D.C., Deborah J. Dewart, Hubert, North
Carolina, Eugene Volokh, UCLA SCHOOL OF LAW, Los Angeles, California, Sarah Harbison,
PELICAN INSTITUTE FOR PUBLIC POLICY, New Orleans, Louisiana, Nicole Saad
Bembridge, NETCHOICE, Washington, D.C., Thomas A. Berry, CATO INSTITUTE,
Washington, D.C., Talmadge Butts, FOUNDATION FOR MORAL LAW, Montgomery,
Alabama, B. Tyler Brooks, LAW OFFICE OF B. TYLER BROOKS, PLLC, Greensboro, North
Carolina, Thomas Brejcha, THOMAS MORE SOCIETY, Chicago, Illinois, Alan Gura,
>

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No. 22-3573 Changizi, et al. v. HHS, et al. Page 2
INSTITUTE FOR FREE SPEECH, Washington, D.C., Ilya Shapiro, MANHATTAN
INSTITUTE, New York, New York, for Amici Curiae.
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OPINION
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JOHN K. BUSH, Circuit Judge. Several Twitter users were temporarily or permanently
banned from the platform for posting alleged COVID-19 misinformation. Rather than sue
Twitter, these users chose to sue the United States Department of Health and Human Services, its
Secretary, and the United States Surgeon General (collectively, HHS). Though these users
asserted claims under the First Amendment, Fourth Amendment, and Administrative Procedure
Act, the district court dismissed their complaint for lack of jurisdiction and failure to state a
claim. On appeal, we ask: are Twitter’s actions traceable to the federal government? Based on
the facts alleged in the complaint, no. We affirm.
I.
Twitter1 is a ubiquitous social-media platform that allows users to electronically
communicate by posting and engaging with limited-length messages called “tweets.” This
marketplace of ideas has historically avoided censorship, but shortly after the COVID-19
pandemic began, Twitter announced that it was broadening its definition of censorable, harmful
information to include “content that goes directly against guidance from authoritative sources of
global and local public health information” (COVID-19 policy). R1, PageID 7. Over the next
year, “Twitter . . . ramp[ed] up [its] efforts to quell the spread of ‘misleading’ COVID-19
information” several times, but few users were suspended until Twitter upped the ante on March
1, 2021. Id. From then on, Twitter announced that it would permanently suspend any user who
received five or more infractions for violating the platform’s COVID-19 policy.
Mark Changizi, Michael Senger, and Daniel Kotzin (collectively, Plaintiffs) are Twitter
users who, by March 2020, began to use their accounts to question responses to the COVID-19
1Twitter is rebranding as “X.” Consistent with the complaint, we continue to refer to the entity as
“Twitter.”

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No. 22-3573 Changizi, et al. v. HHS, et al. Page 3
pandemic. This activity earned them many followers, but between April 2021 and March 2022,
they suffered multiple temporary suspensions. Twitter suspended Changizi three times, Senger
twice, and Kotzin twice for violating the platform’s COVID-19 policy.2 Plaintiffs also allege
that, as early as May 2021, Twitter began to “de-boost” Changizi’s tweets, meaning that his
tweets appeared less often on users’ Twitter feeds and that his replies to other posts were hidden.
According to the complaint, the Biden administration first entered the fray on May 5,
2021. That day, White House Press Secretary Jen Psaki stated that “[t]he President’s view is that
the major [social-media] platforms have a responsibility related to the health and safety of all
Americans to stop amplifying untrustworthy content, disinformation, and misinformation,
especially related to COVID-19 vaccinations,” and “there’s more that needs to be done to ensure
that this type of misinformation . . . is not going out to the American public.” Id. at PageID 8.
Two months later, the Surgeon General released an advisory statement, the
“July Advisory,” related to COVID-19 misinformation. In it, he discussed the problems that
COVID-19 misinformation had caused, identified social-media platforms as a source of this
misinformation, and (according to Plaintiffs) “command[ed] technology platforms” to take
several steps. Id. at PageID 9. This included collecting data on the spread of misinformation,
improving misinformation monitoring, imposing clear consequences for accounts that repeatedly
violate platform policies, and amplifying communications from COVID-19 subject-matter
experts.
Later that day, the Surgeon General held a press conference with the Press Secretary and
said that technology companies “have enabled misinformation to poison our information
environment with little accountability” by “allow[ing] people who intentionally spread
misinformation . . . to have extraordinary reach.” Id. at PageID 10. On behalf of HHS, he asked
social-media platforms “to operate with greater transparency and accountability[,] . . . monitor
misinformation more closely[,] . . . [and] consistently take action against misinformation super
spreaders on their platforms.” Id. The Press Secretary added that the federal government had
“increased disinformation research and tracking within the Surgeon General’s office . . . [and
2One of Changizi’s suspensions was not explicitly linked to a violation of Twitter’s COVID-19 policy.

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No. 22-3573 Changizi, et al. v. HHS, et al. Page 4
had] flagg[ed] problematic posts for Facebook that spread disinformation.” Id. The
administration had also “proposed changes . . . to social media platforms[,]” including
recommendations that they (1) “publicly share the impact of misinformation on their platform[,]”
(2) “create a robust enforcement strategy[,]” (3) “take faster action against harmful posts[,]” and
(4) “promote quality information sources in their feed algorithm.” Id. at PageID 10–11.
The next day, July 16, 2021, the Press Secretary clarified that the Biden administration
was “in regular touch with social media platforms . . . about areas where we have concern [and]
information that might be useful.” Id. at PageID 11. This included engaging with platforms “to
better understand” their enforcement policies. Id. President Biden later told reporters that social
media platforms are “killing people” with COVID-19 misinformation. Id. at PageID 13. Several
days later, USA Today reported that the “[t]he White House is assessing whether social media
platforms are legally liable for misinformation spread on their platforms.” Id. (citation omitted)
Six months later, in January 2022, the Surgeon General said, social media “platforms still
have not stepped up to do the right thing” and control COVID-19 misinformation. Id. And on
March 3, 2022, the Surgeon General issued a request for information (RFI) asking “technology
platforms” to provide the Department of Human Health and Human Services with data
concerning “sources of COVID-19 misinformation” by May 2, 2022. Id. at PageID 14.
Technology platforms faced no penalty for declining to share information, and the RFI warned
companies against submitting any “personally identifiable information” related to their users.3
Particularly relevant for this appeal are the dates of Plaintiffs’ most recent disciplinary
actions. On September 24, 2021, Kotzin received a 24-hour suspension for violating Twitter’s
COVID-19 policy. On December 18, 2021, Changizi’s account was permanently suspended for
violating Twitter’s COVID-19 policy. It was reinstated nine days later, but remains “heavily
censored” by the platform, according to Changizi. Id. at PageID 18–19. Several months later,
Kotzin received his second temporary suspension, this time for seven days, on March 7, 2022,
and Senger was permanently suspended on March 8, 2022.
3Dep’t of Health and Hum. Servs., Impact of Health Misinformation in the Digital Information
Environment in the United States Throughout the COVID-19 Pandemic Request for Information (Mar. 10, 2022),
https://www.regulations.gov/document/HHS-OASH-2022-0006-0001.

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Plaintiffs sued HHS, seeking injunctive relief, declaratory relief, and nominal damages to
remedy HHS’s unlawful efforts to “instrumentalize[] Twitter” to “silenc[e] opinions that diverge
from the White House’s messaging on COVID-19.” Id. at PageID 4, 30. The district court
dismissed their complaint under Rule 12(b)(1) of the Federal Rules of Civil Procedure.4 This
appeal followed.
II.
Article III of the United States Constitution limits “[t]he judicial Power” of the federal
courts to cases and controversies. U.S. Const. art. III, § 2. One prerequisite for a cognizable
case or controversy “is that the parties have standing to bring it.” Hagy v. Demers & Adams, 882
F.3d 616, 620 (6th Cir. 2018). As the party invoking federal jurisdiction, Plaintiffs bear the
burden of establishing the “irreducible constitutional minimum” of standing: (1) they suffered an
injury in fact, (2) caused by HHS, (3) that a judicial decision could redress. Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992). And when, as here, Plaintiffs’ alleged injury “arises from
the government’s allegedly unlawful regulation . . . of someone else, much more is needed [to
establish standing].” Id. at 562; see also Allen v. Wright, 468 U.S. 737, 757–58 (1984) (noting
that it is “substantially more difficult” to establish standing when plaintiffs are not themselves
the object of government action), abrogated on other grounds by Lexmark Int’l, Inc. v. Static
Control Components, Inc., 572 U.S. 118 (2014). Plaintiffs allege several direct and indirect
injuries flowing from HHS’s alleged coercion, some of which are insufficiently particularized to
establish injury-in-fact. But even if we assume that Plaintiffs have satisfied the injury-in-fact
element of Article III standing through their allegation of threatened and actual censorship, see
California v. Texas, 141 S. Ct. 2104, 2114 (2021), Plaintiffs fail to establish traceability.5
4On review of a dismissal order for facial lack of subject-matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1), we are limited to only the facts as alleged in the complaint. See Gentek Bldg. Prods., Inc.
v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007).
5HHS filed a motion for the panel to take judicial notice of certain facts not in the record that may have
mooted most, if not all, of Plaintiffs’ claims and requested relief. But we have discretion to choose the order in
which we address non-merits grounds for dismissing a suit. Ass’n of Am. Physicians & Surgeons v. FDA, 13 F.4th
531, 536 (6th Cir. 2021) (citing Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 431 (2007)).
Because we affirm the district court’s dismissal of Plaintiffs’ complaint for lack of standing, we deny HHS’s motion
as moot.

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No. 22-3573 Changizi, et al. v. HHS, et al. Page 6
Traceability looks to whether a defendant’s actions have a causal connection to a
plaintiff’s injuries. Lujan, 504 U.S. at 560. Causation need not be proximate, so an indirect
injury can support standing. Lexmark Int’l, Inc., 572 U.S. at 134 n.6; see United States
v. Students Challenging Regul. Agency Procs. (SCRAP), 412 U.S. 669, 688-89 (1973). But “‘an
injury that results from [a] third party’s voluntary and independent actions’ does not establish
traceability.” Turaani v. Wray, 988 F.3d 313, 317 (6th Cir. 2021) (quoting Crawford v. U.S.
Dep’t of Treasury, 868 F.3d 438, 457 (6th Cir. 2017)). Thus, a plaintiff must show that the
defendant’s actions had a “determinative or coercive effect” on the third party such that the
actions of the third party can be said to have been caused by the defendant. See Bennett v. Spear,
520 U.S. 154, 169 (1997); see also Turaani, 988 F.3d at 316 (explaining “[a]n indirect theory of
traceability requires that the government cajole, coerce, [or] command”). That the defendant is
the federal government does not change this assessment. See, e.g., Skinner v. Ry. Labor Execs.’
Ass’n, 489 U.S. 602, 614 (1989) (“Although the Fourth Amendment does not apply to a search or
seizure, even an arbitrary one, effected by a private party on his own initiative, the Amendment
protects against such intrusions if the private party acted as an instrument or agent of the
Government.”).
By this metric, Plaintiffs’ complaint falls short. Plaintiffs maintain that the timing of
Twitter’s actions related to the RFI and the July Advisory as well as the public statements made
by the Surgeon General, Press Secretary, and President Biden all support an inference that
Twitter’s disciplinary measures are state action attributable to HHS. But Plaintiffs fail to adduce
facts demonstrating that the decisions Twitter made when it enforced its own COVID-19 policy
did not result from its “broad and legitimate discretion” as an independent company. ASARCO
Inc. v. Kadish, 490 U.S. 605, 615 (1989).
Consider first the timeline. According to the complaint, Twitter created and enforced its
first COVID-19 policy long before the Biden Administration made any public statements and, in
fact, before there was a Biden Administration. Indeed, Twitter first announced that it “would
censor” COVID-19 misinformation in March 2020, but Plaintiffs’ first-cited government
“action” was a statement made on May 5, 2021, by Press Secretary Psaki. R1, PageID 8. And
over the next year, Twitter “continued to ramp up efforts to quell the spread of ‘misleading’

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COVID-19 misinformation,” by creating additional warnings for misleading tweets and
removing tweets with false or misleading information about COVID-19 and COVID-19
vaccinations.6 Id. Accepting Plaintiffs’ allegation that Twitter “rarely suspended users” for
spreading misleading information about COVID-19 before March 1, 2021, that was still two
months before any alleged government action, and four months before HHS made its first
statement. See id. at PageID 7–9. Thus, many of Twitter’s changes to its own COVID-19 policy
and enforcement policy preceded the government actions that purportedly coerced Twitter to
censor Plaintiffs.
But Plaintiffs have a response to this timeline discrepancy—senior officials from the
Trump or Biden Administrations engaged in “behind the scenes communications” at some
undisclosed point before the first public statements. Appellant’s Br. at 20. But lacking any
details in the complaint of any purported communications, let alone specific allegations of the
content of behind-the-scenes communication, this “bare assertion of conspiracy” alone cannot
remedy their timeline discrepancy. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556–57
(2007). Plaintiffs reply that they “had no conceivable means of acquiring concrete information
to corroborate [this] supposition[] without a discovery order.” Appellant’s Br. at 20. But federal
courts will not “unlock the doors of discovery” for a fishing expedition based on a plaintiff’s
speculative assertions. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009).
Because Plaintiffs have not adequately pleaded that HHS compelled Twitter’s chosen
course of conduct, we are left with a “highly attenuated chain of possibilities” that is too
speculative to establish a traceable harm. See Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410
(2013). Therefore, the district court must be affirmed.
In reaching this conclusion, we acknowledge that a different result could be possible
under different facts. This would be a different case if, for example, additional facts were
alleged in the complaint that would allow a conclusion that, under the totality of the
circumstances, Twitter’s actions were compelled or coerced by the federal government. See,
6Twitter amended its policies on May 11, 2020, and again on December 16, 2020, by “broadening the
definition [of harmful information] and explaining that [misleading COVID-19 information] could be labeled or
even removed.”

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e.g., Blum v. Yaretsky, 457 U.S. 991, 1004–05 (1982); Skinner, 489 U.S. at 614–15. But as befits
this stage of the litigation, our review is confined to the allegations as they appear in the
complaint. See Rote v. Zel Custom Mfg. LLC, 816 F.3d 383, 387 (6th Cir. 2016). Plaintiffs’
bare-bones request in a footnote that we take judicial notice of the existence of evidence that
arose in cases not before us does not alter this standard.7
III.
For all these reasons we AFFIRM the district court’s judgment.8
7Moreover, judicial notice is available only for facts that are not subject to “reasonable dispute.” Fed. R.
Evid. 201(b). While we could conceivably take judicial notice of the fact that an analogous case is ongoing in
another circuit, Plaintiffs ask us to take judicial notice of the truth of assertions detailed in various judicial filings.
See Davis v. City of Clarksville, 492 F. App’x 572, 578 (6th Cir. 2012). Judicial notice is not a work-around for
Plaintiffs’ untimely motion to amend their complaint, so we deny their footnote request. See In re Omnicare, Inc.
Sec. Litig., 769 F.3d 455, 467 (6th Cir. 2014).
8This opinion should be understood as dealing only with the particular case before us. The general
concerns raised by the appellants here are not phantasmagorical, and on a different set of allegations might
survive at the motion-to-dismiss stage. It may be difficult to draw a line between government actions where
allegations might survive dismissal under the standard of actions that would “coerce or compel private actors”
and those that are simply the policy or political statements of an administration. In some circumstances that
question might require determination by a finder of fact.
On the other hand, we should be mindful that throughout history, in the course of ordinary political
discourse, our government has made quite clear its displeasure with actions taken by private parties, whether
President Kennedy’s pointing out government actions against steel executives because of their economic
decisions, The President’s News Conference of April 11, 1962, 1 PUB. PAPERS 315–17 (Apr. 11, 1962), or
President George Bush’s press secretary telling reporters in the wake of 9/11 that “all Americans . . . need to
watch what they say,” White House Office of the Press Secretary, Press Briefing by Ari Fleischer (Sept. 26,
2001).
And, of course, the larger and more powerful government becomes, with the ability to affect more and
more aspects of private life, the more porous the boundary between government speech and coercion might
become.
In Missouri v. Biden, No. 23-30445, 2023 WL 5821788 (5th Cir. Sept. 8, 2023), these issues were
addressed on a more comprehensive scale, not based on actions with respect to discrete individual plaintiffs, as
in the case we have before us. We express no opinion as to how these principles that we have laid out in this
opinion would apply to different factual allegations.

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