Last Week 5th Circuit Said Gov’t Can’t Pressure Websites, This Week It Says Gov’t Mandated ‘Health’ Messages Are Perfectly Fine
from the when-republicans-do-it,-it's-fine dept
It can always get dumber. And when we’re talking about the 5th Circuit, you have to assume it will always get dumber. And that’s what has happened now with the 5th Circuit issuing a stay on an injunction that had blocked an obviously unconstitutional law. But we’ll get to those details in a moment.
Just last week we wrote about the decision in the 5th Circuit saying that the government cannot coerce websites regarding how they moderate content. We noted that this seemed to be in near total conflict with last year’s 5th Circuit ruling saying that of course governments can tell websites how to moderate (the only point on which they are consistent is that “it’s okay when Republicans do it, and not okay when Democrats do it”).
But that ruling last year was even crazier than it sounds. As you may recall, Texas passed this law, HB 20, that told social media websites how they had to moderate (or not moderate) certain content. A federal district court issued an injunction blocking the law, laying out in great detail how very, very, very obviously unconstitutional the whole thing was. It appeared that the judge in that case knew full well that the 5th Circuit was likely to muck it up and was trying to convince them not to.
Somewhat incredibly, the 5th Circuit mucked it up in spectacular fashion, overturning the injunction and reinstating the law immediately with zero explanation. Normally, when you issue a ruling stopping an injunction (or issuing one) you… explain why. But the three judge panel just issued a one-line ruling saying that the motion was granted. No explanation. This resulted in a mad dash to the Supreme Court which (perhaps surprisingly!) told the 5th Circuit that this was procedurally inane, and put the law back on hold.
Eventually, many, many, many months later, the 5th Circuit explained its reasoning in an opinion authored by Judge Andy Oldham, reinstating the law again (which was then put on hold while it was appealed to the Supreme Court, where we’re still waiting to see what happens). Oldham’s reasoning basically overturned a century’s worth of “settled” 1st Amendment law.
So, anyway, that’s the history from last year. Onto this year. Earlier this year, Texas passed a law requiring both age verification and a mandatory “health warning” message on all adult content websites. The Free Speech Coalition sued to stop the law going into effect (as it was scheduled to do on September 1st) and, as we reported, the court reasonably granted the injunction blocking the law, noting that it was pretty clearly a violation of the 1st Amendment for both the age verification bits and for the mandatory health warning, which forces adult websites to say that “Texas Health and Human Services” has claimed that pornography leads to eating disorders, impaired brain development and an increase in demand for child exploitation even though, as the judge blocking the law noted, Texas Health and Human Service’s department never found any such thing.
As the court clearly notes “this is compelled speech.”
Anyway, with the court rejecting it, we figured there would be some time for it to go through the usual appeals process.
But we did not count on good ol’ 5th Circuit Judge Andy Oldham. Because a three judge panel that includes Oldham reinstated the law, putting an “administrative stay” on the preliminary injunction that blocked the law in the first place. Once again, the ruling gives no details at all. It’s two sentences this time (up from one the last time), and just effectively removes the preliminary injunction, meaning that the law is immediately in effect. The only difference from last year’s similar nonsense is that the court says the appeal is “expedited” to the next available oral argument panel.
5th Circuit lawyer Raffi Melkonian wrote on Bluesky that there’s some procedural weirdness to all this, noting the 5th Circuit will often issue an administrative stay while considering a motion for a stay, but here it’s not even yet considering the actual stay because it’s saying that it will deal with it during oral arguments.
Either way, the law is now in effect and we have no idea what that means because the 5th Circuit has explained nothing.
And, again, between these two 5th Circuit rulings, a week and a half apart, we are being told by the very same court that governments cannot do anything to coerce speech on some platforms, but absolutely can compel speech on other platforms.
If that seems contradictory, the reality is that what the 5th Circuit is saying, in a truly partisan way, is that when Republicans compel speech, that’s fine. It’s not only fine, but the court doesn’t even need to explain why it passes constitutional muster. When Democrats highlight content that could lead to harm for websites to look at and decide for themselves if they want to host it, that is the worst censorship scandal in the history of America, and the government should be barred from speaking to the companies at all.
The 5th Circuit is a joke, and its main court jester seems to be Andy Oldham.
There is no workable theory of the 1st Amendment here. There is nothing but a distorted partisan filter.
Filed Under: 1st amendment, 5th circuit, age verification, andrew oldham, andy oldham, compelled speech, free speech, hb 1181, texas
Companies: free speech coalition
Comments on “Last Week 5th Circuit Said Gov’t Can’t Pressure Websites, This Week It Says Gov’t Mandated ‘Health’ Messages Are Perfectly Fine”
Does a lot to inspire confidence in our judicial system. It’s becoming clearer and clearer that justice is only available to wealthy Republicans. It was a great experiment. Too bad it survived less than 250 years…
There aren’t any justices anymore. Just Justifiers.
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And this week, Pulitzer-prize winning investigative journalist Glenn Greenwald said you were “one of the worst, most dishonest liberals in media,” Mike! 😮
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…hallucinated nobody mentally comoetent, ever.
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Greenwald wont put out for you, no matter how hard you try to force things down his throat.
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While your homophobia is disgusting (but unsurprising, given this is MM’s TD blog), what’s truly shocking is your focus on trying to mock or diminish me for citing Greenwald, rather than evaluating his extremely brutal criticism of this website’s owner.
One of the world’s most accomplished and successful investigative journalists has denounced MM as nothing more than a shill for the corrupt, shameless Democratic Party and its Big Tech allies, and all you want is to try to embarrass me for being gay.
You’re pathetic.
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boi you right wing scum that think anything a right winger said is true truly amazes me
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Why the fuck should anyone here care about what a Russian asset says about anyone else?
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What happened to Greenwald anyway?
He used to be a journalist, now he spews propaganda .. why?
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It seems like entshittification can happen to people as well as platforms.
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Jhon pls
Glenn Greenwald doesn’t even want to be in the same room as you
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Greenwald, the pulitzer prize-winnning journalist died years ago. Like Anakin Skywalker, he was betrayed and murdered by Darth Glenn, political hack and ally of fascist Russia.
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His attempt to strike Mike down proved Mike to be more powrrful than he could possibly imagine.
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Rightwing Fascism: – You will never find a more wretched hive of scum and villainy. We must be cautious.
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Shhh, sweetie – the adults are talking.
Star Wars is for 8 year-olds…
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shhhhh sweetie the real adults are talking fascist anonymous coward
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Shh honey, you stole that line from an actual adult.
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The only person your burning with that remark is yourself.
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True.
But Jhon is so unpleasant that even the Chinese Asset/Friend of Putin Darth Glenn would rather be exiled to a Chinese “reeducation center” than be with Jhon.
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Seems like a real badge of honor for Mike!
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Being denounced as a partisan hack who carries water for Big Tech and the corrupt Democratic party is a “real badge of honor” in your twisted, degenerate worldview? Wow! 😮
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Twisted, degenerate worldview? I’d imagine it would look like that to someone who actively tries to make their own worldview into stale pretzels.
That being said, you don’t need to keep adding more salt. Your pretzels already have more than enough. We still don’t want the pretzels, but adding more salt won’t fix that.
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These pretzels are making me thirsty!!
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oh no right wing loser so scared by your insult it’s so original
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Me thinks the boi doth protest too much!
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Google says you’re lying.
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Glenn Greenwald in “SYSTEM UPDATE” episode #149 at 1:27:42 (Monday, September 18, 2023):
“Mike Masnick, one of the worst, most dishonest liberals in media, who constantly defends Big Tech…”
I’m sure you’re more than capable of googling the URL to that episode and navigating to that timestamp.
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You do understand you can’t just google AV-content, right? Unless there’s a transcript somewhere that got indexed.
I just have to wonder how hard it is for some people to actually post links to material they reference, especially when it comes to things on youtube and channels that have very few views, people aren’t clairvoyant.
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jhon got a source from a russian asset so don’t listen to them
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loser who can’t even provide a link that’s sad from a fascist like you jhon
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I’m sure they are. But, the fact you had to tell everyone which random podcast to scroll an hour and a half into in order to find the content, instead of something that could be found via Google or reputable reporting, say more about you than anyone else.
Though, if you’re spending hours every week getting you information from that source, that does explain a few things.
'X is terrible!' 'Your side is doing X' 'Like I've always said X is great!'
Kinda giving away the game there fifth circuit and making clear that the standard being applied has nothing to do with the first amendment and everything to do with what political party is doing the action you’re currently ruling on.
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am willing to bet pornhubs gonna block texas too
Of course.....
Turns out Andy there surved as general counsel for drum roll….. Greg Abbot, Texas’s Governor. Of course this would happen…
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Partisanship in side only?
Interesting how you feel that veiled (and not so veiled) threats from the White House should not be factored into the question of censorship vs. the 1st Amendment. Heck, you initially said the Twitter Files were a “nothing burger” and here they effectively started the avalanche of additional evidence of White House and FBI demands on social media even regarding content that was true and not any sort of mis/dis/mal-information. While I would not try to suggest that the GOP wasn’t ham-handed in its approach with social media companies when they had their oppty and a party president in power, the Dems have been an equal or worse disgrace by similar standards. Mostly however, because it was never the party of censorship but now appears to be all about not wanting any comments, reporting or opinion not in line with their narrative to be removed or downgraded, whether on climate, COVID, Hunter, or the Russia/Ukraine war. Perhaps you should take off the rose colored glasses and view this as two terrible parties, not as “one bad the other good” sorta thing 😉
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so your fine with the gop ok fascist you do you
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…hallucinated nobody mentally competent, ever.
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You did read the 5th circuit opinion, right?
It was a nothing burger, especially considering all the bleating about it from the conservatives which proved to be just that, bleating. You did read the 5th circuit opinion, right?
Remind me again which president was sued for blatant censorship of anyone he didn’t like on Twitter? Remind me what party has banned more than 1500 books? Remind me also which party have pushed near 400 bills that amounts to educational intimidation, aka indirect censorship? Remind me again which party is almost entirely united behind these actions?
Double negatives is a bitch, isn’t it.
This is interesting. Tell us, where have Mike said that one party is bad and the other is good? I need citations for this since you seem to know your shit.
Re: Both sides are bad, so vote Republican
Of all the things that never happened, those never happened the most.
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Did you read my posts on the ruling? That’s absolutely false. I called out the few “veiled threats” from the White House and explained which ones were inappropriate and over the line, and highlighted why there were parts where it made sense for the courts to tell the government to back off.
You seem to be making up facts that feel convenient to you to attack me for partisan points.
First off, I said that about the first Twitter files, noting that more could come out that would convince me otherwise. But, now that they all have come out, I stand by it. There was literally nothing in the Twitter Files that showed the WH and FBI “demanding” any kind of content removals. At all.
The Dems have been bad, and we’ve called it out when they have. We called out the WH trying to pressure companies, and we called out the stupidly framed “disinfo governance board.” We’ve also called out awful laws in both blue and red states.
So, your claim that we’re doing “partisanship” for just one side is just blatantly false.
However, because my views are not driven by anything having to do with parties, I can look at the actual facts, and the Missouri v. Biden case is a clusterfuck of nonsense. The court literally had to falsify quotes to make the case work, and take other quotes out of context.
I know you’re a long time reader, but it really feels like you haven’t been following our coverage, other than to drop in with your very maga-colored glasses.
Both parties are terrible, sure. But one party is disconnected from reality and pushing for outright authoritarianism. The other is just conventionally bad.
I’ll call out both for when they’re bad, but anyone who thinks they’re equivalently bad is not paying attention.
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Does ChatGPT know how to use paragraphs?
At some point perhaps it is time to look past the image of the thing & see how rotten it has gotten inside & do something about it.
I mean I think the White House is great and all, but lets be honest millions are being poured into a building to keep the image going even as it no longer serves its purpose well.
Oh the past, what it stands for, blah blah blah, we’re dumping stupid amounts of cash into a building that is long past being useful to prop up an image in your heads that is far different from reality.
The legal system is broken at so many different levels, and no one wants to consider doing anything about it.
1 fucking judge in the armpit of TX can hold the entire nation hostage on if the FDA had the authority to approve a drug or not, while he actively lied during his confirmation and hid evidence that might have called into question his ability to be impartial. (Like we needed more evidence he has his own agenda he is willing to pervert the law to force upon everyone else).
It is long past time we admit that these unassailable pillars of law, order, justice have fallen victim to mans inability to be incorruptible.