5th Circuit Continues To 5th Circuit, Issues Yet Another Version Of Its Injunction, This Time Including CISA

Legal Issues

from the the-5th-circuit-is-where-law-goes-to-die dept

Look, I don’t want to suggest that maybe the 5th Circuit’s analysis on issues in the Missouri v. Biden case is not particularly well considered, but, um, it’s not at all clear that the 5th Circuit’s analysis on the Missouri v. Biden case is well considered. After all, the original ruling made a series of embarrassing factual errors, falsely presenting comments by White House officials as being about content moderation when they were not, and failing to highlight how certain speech was coercive beyond “we think it is.” It also failed to attribute many of the comments it quoted, so it was impossible to backtrack who said what and in what context, and further failed to distinguish between different platforms who acted very differently.

Even more pointedly, one of the big criticisms of the 5th Circuit ruling was that it provided no standards for understanding what activity crossed the line from government attempts at persuasion (legal) to government attempts at coercion (not legal). It just said that the activity by the White House, FBI, and CDC were over the line and coercive, while the activity of CISA, the State Department, and NIAID were not over the line (and therefore those entities were not limited by the injunction).

This lack of clarity as to why some agencies were included in the injunction and some were excluded is part of why the White House went to the Supreme Court to ask it to put the injunction on hold.

The Supreme Court did put the ruling on hold for a few days (and then a few more days) and then… did nothing. Really. If you look at the docket for this case at the Supreme Court site, you see that Justice Alito initially stayed the 5th Circuit injunction until Friday, September 22nd at 11:59pm.

Then, on the On the 22nd, he gave himself more time, to the following Wednesday the 27th at 11:59pm.

And on the 27th… he did… nothing. Nothing at all. To date that docket has not been updated, other than by the respondents in the case (basically Louisiana and Missouri) updating the court on things. I don’t know if this is because Alito forgot about it, or thought that it didn’t matter any more? Or because of some other confusion over what the 5th Circuit did in the interim.

On September 25th, the 5th Circuit withdrew the original injunction from the 8th. On September 26th, it withdrew the order from the 25th which withdrew the order from the 8th. It was suggested that it did this upon realizing that the order from the 8th was currently under review by the Supreme Court.

So… I guess the fact that Alito has ignored the docket and let his stay expire on the 27th meant that the injunction went back into effect… and now the 5th Circuit can issue another new injunction? Because that’s what it’s done. Yesterday the 5th Circuit basically issued more or less the same injunction that it issued on the 8th… except that this time, CISA is included among the enjoined parties (which was a piece of what the states had asked for whenthey asked the 5th Circuit to review the original ruling).

But all of this is procedurally weird. Not even getting into the injunction withdrawals and withdrawal of withdrawals, this new ruling wasn’t done en banc (with all the judges) or with any oral arguments. Just with the petition from the plaintiffs and the reply from the White House.

I mean, maybe that’s how the 5th Circuit rolls, but it all seem ridiculously ad hoc.

As is the case with the new ruling, which now adds in CISA as an enjoined party. I ran the two opinions through a diff checker, and they are literally the same, except where the original ruling said that while CISA did flag content to social media websites and hold meetings with them, it wasn’t coercive, now it suddenly says that it is. With basically no explanation whatsoever.

Seriously.

The new ruling includes ONE new paragraph saying “oh yeah, CISA too.”

Next, we examine CISA. We find that, for many of the same reasons as the FBI and the CDC, CISA also likely violated the First Amendment. First, CISA was the “primary facilitator” of the FBI’s interactions with the social-media platforms and worked in close coordination with the FBI to push the platforms to change their moderation policies to cover “hack-and-leak” content. Second, CISA’s “switchboarding” operations, which, in theory, involved CISA merely relaying flagged social-media posts from state and local election officials to the platforms, was, in reality, “[s]omething more.” Roberts, 742 F.2d at 228. CISA used its frequent interactions with social-media platforms to push them to adopt more restrictive policies on censoring election-related speech. And CISA officials affirmatively told the platforms whether the content they had “switchboarded” was true or false. Thus, when the platforms acted to censor CISA-switchboarded content, they did not do so independently. Rather, the platforms’ censorship decisions were made under policies that CISA has pressured them into adopting and based on CISA’s determination of the veracity of the flagged information. Thus, CISA likely significantly encouraged the platforms’ content-moderation decisions and thereby violated the First Amendment. See Blum, 457 U.S. at 1008; Howard Gault, 848 F.2d at 555.

This replaces the following paragraph in the original ruling:

Finally, although CISA flagged content for social-media platforms as part of its switchboarding operations, based on this record, its conduct falls on the “attempts to convince,” not “attempts to coerce,” side of the line. See Okwedy, 333 F.3d at 344; O’Handley, 62 F.4th at 1158. There is not sufficient evidence that CISA made threats of adverse consequences— explicit or implicit—to the platforms for refusing to act on the content it flagged. See Warren, 66 F.4th at 1208–11 (finding that senator’s communication was a “request rather than a command” where it did not “suggest[] that compliance was the only realistic option” or reference potential “adverse consequences”). Nor is there any indication CISA had power over the platforms in any capacity, or that their requests were threatening in tone or manner. Similarly, on this record, their requests— although certainly amounting to a non-trivial level of involvement—do not equate to meaningful control. There is no plain evidence that content was actually moderated per CISA’s requests or that any such moderation was done subject to non-independent standards.

There is no discussion as to why the court changed its mind. There is no discussion about the details of what made it persuasion in the first opinion, but coercion in the second opinion. There is… nothing.

To the argument that the White House made that this ruling provides them with no actionable details of how the line is drawn, the fact that the new ruling just rewrites this one paragraph, without details, to switch from “persuasion” to “coercion” is a disaster of jurisprudence.

It’s basically the 5th Circuit admitting that its decision on the difference is not driven by any test (like the rest of the opinion pretended it was setting up), but rather by its somewhat arbitrary whims.

That is not at all how courts should rule.

Beyond replacing that one paragraph with another, the opinions are effectively the same (a few other references to CISA were removed from the rest of the ruling about entities that were not violating 1st Amendment rights).

That does mean that the State Department and NIAID are still excluded from the injunction. But… it gives the government literally nothing to work from in determining what is allowed and what is stomping on people’s rights.

You have to imagine that the White House is going to turn around and go right back to Alito to say “yo, put this on hold until you can review.”

Filed Under: 1st amendment, 5th circuit, cisa, content moderation, fbi, jawboning, louisiana, missouri, niaid, samuel alito, social media, state department, supreme court, vivek murthy