Does anyone want to be OK with this just because it might end up barely clearing the legality bar? Is this what the US wants to be known for: the forcible expulsion of anyone originating south of our borders just because the current administration doesn’t want to share space with undocumented (but otherwise law-abiding) immigrants? Is it time to cut Lady Liberty off at the knees and shove her hulking metal carcass into the bay?
A federal judge is raising alarms that the Trump administration deported a two-year-old U.S. citizen to Honduras with “no meaningful process,” even as the child’s father was frantically petitioning the courts to keep her in the country.
U.S. District Judge Terry Doughty, a Trump appointee, said the child — identified in court papers by the initials “V.M.L.” — appeared to have been released in Honduras earlier Friday, along with her Honduran-born mother and sister, who had been detained by immigration officials earlier in the week.
The judge on Friday scheduled a hearing for May 16, which he said was “in the interest of dispelling our strong suspicion that the Government just deported a U.S. citizen with no meaningful process.”
I don’t know, judge. Your interest may be well-placed but it’s getting pretty fucking difficult to “dispel strong suspicions” that the government is just deporting people — citizens or not — with no meaningful due process. That’s why this administration has resurrected the Alien Enemies Act. That law all but eliminates due process from the equation so long as federal agents can boilerplate together stuff about tattoos and gang affiliations to pile on top of the utter bullshit that supposedly necessitates the revival of long-dormant law.
The government was no more inclined to give the US-born child due process rights than it was to extend them to her undocumented parents. Instead, ICE simply grabbed the child’s mother, along with her older sibling, during a routine compliance check-in, threw them on a jet, and sent them back to Honduras. Well, “back” except for the two-year-old, who was born in the United States.
The government hasn’t offered much in response to US resident/apparent designated legal caretaker for the 2-year-old US citizen motion for a restraining order blocking the child’s deportation. And why should it? It’s already a done deal.
What it has offered is a hand-written note allegedly written by the child’s mother declaring her intent to have her youngest child deported with her. It also claims most parents want their US-born children deported with him, an assertion that can’t possibly be true if these parents migrated to the United States to give themselves and their offspring a better life.
The child’s father (also an undocumented immigrant) clearly felt the two-year-old would be better off staying in the US with an appointed guardian. That’s why he appointed one as soon as he found out ICE had detained his child. Fearing deportation of his own if he went to claim his child, he signed paperwork making another US resident the child’s legal guardian.
ICE promised to put the guardian in touch with the child’s mother to see if she really wanted to take the child to Honduras with her. Then it blew the guardian (and the court) off until the child was already out of the US and en route to Honduras.
That’s where Terry Doughty comes in. He’s apparently a big fan of Trump and his policies, which makes him a prime landing spot for cases the administration (and other Republican legislators) want to win. But that doesn’t work here.
The short order [PDF] makes it clear this isn’t something the government is just going to be able to ignore. There’s no unsettled question of legality that requires in-depth discussion.
Of course, “It is illegal and unconstitutional to deport, detain for deportation, or recommend deportation of a U.S. citizen.” See Lyttle v. United States, 2012
Open. Shut. On top of that, a handwritten note and some generalizations about deported parents aren’t the smoking guns the government seems to think they are. (Emphasis in the original.)
The Government contends that this is all okay because the mother wishes that the child be deported with her. But the Court doesn’t know that.
Precisely. Then there’s the fact that the government moved as quickly as it could to carry out this miscarriage of justice before the court could tell it to stop.
Seeking the path of least resistance, the Court called counsel for the Government at 12:19 p.m. CST, so that we could speak with VML’s mother and survey her consent and custodial rights. The Court was independently aware at the time that the plane, tail number N570TA, was above the Gulf of America. The Court was then called back by counsel for the Government at 1:06 p.m. CST, informing the Court that a call with VML’s mother would not be possible, because she (and presumably VML) had just been released in Honduras.
Well, I guess he’s still a bit Trumpian. But the deliberate misgendering (or whatever) of the Gulf of Mexico aside, this chain of events doesn’t make the government look any less shady. Dispelling the “strong suspicion that the government just deported a US citizen with no meaningful process” is all but impossible at this point. Of course, even if it’s shown the child was supposed to remain in the United States, it’s all but guaranteed it will take a heated, protracted legal battle to force the Trump Administration to do something it hasn’t done yet: press the undo button on an illegal deportation.
It remains incredible to me that we sometimes have to rely on the nutty Fifth Circuit to correct the even nuttier “MAGA favorite” judges who issue the stupidest decisions in court cases. But now they’ve done it again, as the Fifth Circuit has pointed out that, no, RFK Jr. does not appear to have standing to sue Joe Biden because Facebook moderated some of his anti-vax nonsense.
This will take some background coverage to get to where we are.
If you’ll recall, Missouri and Louisiana sued Joe Biden, falsely claiming that the White House engaged in a campaign to censor conservatives on social media. They filed this in a federal court where they knew they’d get Trump appointee Judge Terry Doughty, who appeared to deliberately wait until July 4th (a day the courts are closed) to issue a truly wacky opinion, who also took a bunch of nonsense, lies, and conjecture as proof of a grand conspiracy to censor conservatives.
The Fifth Circuit rejected a lot of Doughty’s nonsensical injunction, but did leave some of it in place (at one point, bizarrely, reissuing its decision and saying that one part of the government, CISA, that it initially said hadn’t done anything wrong, had in fact done something wrong, but the Court chose not to tell us what).
Eventually, the case made its way to the Supreme Court (under the name Murthy v. Missouri), where both lower court rulings were effectively tossed out. The majority, led by Justice Amy Coney Barrett, made it clear that the plaintiffs had no standing, particularly because they couldn’t show that any content moderation efforts by the social media companies had anything to do with actions by the federal government. As the Supreme Court said:
The primary weakness in the record of past restrictions is the lack of specific causation findings with respect to any discrete instance of content moderation. The District Court made none. Nor did the Fifth Circuit, which approached standing at a high level of generality. The platforms, it reasoned, “have engaged in censorship of certain viewpoints on key issues,” while “the government has engaged in a yearslong pressure campaign” to ensure that the platforms suppress those viewpoints. 83 F. 4th, at 370. The platforms’ “censorship decisions”—including those affecting the plaintiffs—were thus “likely attributable at least in part to the platforms’ reluctance to risk” the consequences of refusing to “adhere to the government’s directives.” Ibid.
We reject this overly broad assertion. As already discussed, the platforms moderated similar content long before any of the Government defendants engaged in the challenged conduct. In fact, the platforms, acting independently, had strengthened their pre-existing content-moderation policies before the Government defendants got involved.
Meanwhile, while all of this was going on, pretend-free speech supporter RFK Jr. had been running around to multiple courts trying to sue over the fact that Meta had moderated some RFK Jr. related content. Those cases (there are multiple ones) haven’t gone well at all. Perhaps seeing an opportunity to piggyback on the Missouri/Louisiana case, he filed a similar case in the same district and tried to connect the cases. Judge Doughty put that effort on hold until the Supreme Court process played out.
Once that was done, RFK Jr.’s lawyers insisted that any plain reading of the Murthy ruling was that while maybe the others in the case didn’t have standing, clearly he did. His explanation for this was complete and utter nonsense, but in Judge Doughty’s court, that’s enough. A few months back, Judge Doughty insisted that RFK Jr. had done enough to show standing and his case against the Biden admin could proceed.
As I noted in my writeup of this ruling, Judge Doughty came to this by completely misrepresenting a ton of information regarding how the world works.
Thankfully, the Fifth Circuit has now stepped in to vacate that decision, slap Doughty on the wrist, and suggest he try again.
RFK Jr. relied heavily on two declarations: one from Mary Holland, the head of RFK’s anti-vax organization Children’s Health Defense (CHD) and one from Brigid Rasmussen, the chief of staff for his doomed political campaign. The court notes that the Supreme Court had clearly instructed lower courts in the Murthy ruling that they need to show pretty clear “traceability” of actual government actions leading to private companies’ decisions to moderate.
While Doughty skipped over the details and said “sure thing, looks like censorship to me,” the three-judge panel here (Higginbotham, Stewart, and Haynes) realize that RFK’s claims are just as weak as everyone else’s involved in this case. Neither of the new depositions show anything approximating traceability. Indeed, the court notes that the deposition seems pretty similar to declarations that the Supreme Court already rejected in this very case.
The Court in Missouri explained that “the vast majority of [the White House’s] public and private engagement with the platforms occurred in 2021, when the pandemic was still in full swing” and that “the frequent, intense communications that took place in 2021 had considerably subsided by 2022.” Id. at 1994. The Court also noted that, “in April 2023, President Biden signed a joint resolution that ended the national COVID–19 emergency” and “[t]he next month, the White House disbanded its COVID–19 Response Team, which was responsible for many of the challenged communications in this case.” Id. at 1995. Regarding the CDC, the Court concluded that “the risk of future harm traceable to the CDC is minimal” because “[t]he CDC stopped meeting with the platforms in March 2022.” Id. at 1994. Although “the platforms sporadically asked the CDC to verify or debunk several claims about vaccines,” “the agency has not received any such message since the summer of 2022.”
Plaintiffs argue that because the CDC and Kennedy continue to be censored, their situation is distinguishable from Missouri. Missouri demonstrates the flaw in that argument. There, “the plaintiffs and the dissent suggest[ed] that the platforms continue to suppress their speech according to policies initially adopted under Government pressure.” Id. at 1995. The Court responded as follows:
[T]he plaintiffs have a redressability problem. . . . The requested judicial relief . . . is an injunction stopping certain Government agencies and employees from coercing or encouraging the platforms to suppress speech. A court could prevent these Government defendants from interfering with the platforms’ independent application of their policies. But without evidence of continued pressure from the defendants, it appears that the platforms remain free to enforce, or not to enforce, those policies—even those tainted by initial governmental coercion
Plaintiffs here have the same redressability problem.
We therefore conclude that the Holland declaration does not establish standing
As for the Rasmussen declaration, she’s got the same problem:
Rasmussen describes a series of content-moderation actions taken by social-media platforms against the Kennedy campaign and its supporters.But she does not trace any of the platforms’ content-moderation actions against Kennedy back to the government.
All of this was obvious when it was presented to Judge Doughty. The Justice Department explained this to Judge Doughty, but he ignored it. Now he has to find out about it from the Fifth Circuit. How embarrassing.
RFK tried to make a bigger deal by trying to argue that he had standing since he was a political candidate for president (sorta) and the White House was trying to suppress his campaign (a thing they were not actually doing). Again, the judges are not impressed:
Here, the only new election-related evidence is the Rasmussen declaration. But the declaration does not cure the traceability problem from Missouribecause it does not allege any government action that is responsible for suppression of Kennedy’s campaign content. Kennedy must therefore rely on the same “speculative chain of possibilities” as Hoft in Missouri. Id. (quoting Clapper, 568 U.S. at 414). That chain does not become any less speculative if the FBI states that it will continue to communicate with platforms regarding election misinformation. If anything, Kennedy’s chain of possibilities might be even more speculative now that he has suspended his presidential campaign, a fact of which we may take judicial notice.
Again, it’s pretty incredible how much bullshit Judge Doughty was willing to rubber-stamp, even to the point that an entire three-judge panel at the Fifth would issue a per curiam “nah, dawg, that’s not how it works” ruling.
End result:
We therefore conclude that Kennedy lacks standing to seek a preliminary injunction for his claims concerning election-related content.
Because Plaintiffs lack standing to seek a preliminary injunction against Defendants, we VACATE the preliminary injunction and REMAND to the district court.
It will not surprise me at all if Judge Doughty comes up with some other method to keep this case going. He really seems to love ignoring reality to bless a fantasy world, made-up, nonsense case in which the Biden administration is actively telling social media sites who to censor and those social media sites are eagerly complying (again, something that has not happened).
But, at least for now, RFK Jr. is back sitting on the outside looking in. Something he should get used to.
In June of this year, the Supreme Court sent the Murthy case back to the lower courts. The Court argued that the plaintiffs all appeared to lack standing to sue the Biden administration over claims of social media censorship. While the Court focused on the standing issue, the majority opinion also made abundantly clear that a big part of the problem was the absolute nonsense that the plaintiffs had filed. That nonsense had no basis in reality, and yet the lower courts not only insisted the lies were true, but even embellished them.
The major player at fault in all of this was Judge Terry Doughty in Louisiana. He infamously published his original opinion on July 4th, claiming that the suit had uncovered one of the most extreme cases of government censorship in violation of the First Amendment that had been seen in decades. But that was based off of not just believing a ton of nonsense, but actively taking some things out of context, inserting words into quotes to make them mean the opposite of what they meant, and much much more.
Indeed, when the Murthy decision came out from the Supreme Court, it called out just how sloppy the record was below. And while it didn’t call out Judge Doughty directly, the court made it pretty clear that Judge Doughty should maybe not look at absolutely everything through a prism of “how can I spin this to make the Biden administration look the worst.”
Judge Doughty does not appear to have gotten the message.
As we mentioned recently, while the Murthy case did not involve RFK Jr., he has tried to glom onto it and add his name as a plaintiff. The judge had put that on hold while the Supreme Court process worked out, but now that that’s concluded, the issue eventually had to come up again. The Biden administration told Judge Doughty it’s pretty obvious that, based on the ruling in Murthy, RFK Jr. has no standing to sue here either:
The Supreme Court’s conclusion that the plaintiffs in Murthy v. Missouri, 144 S. Ct. 1972 (2024), lacked standing—both on a speaker theory (based on restrictions on their own posts on social-media platforms) and on a listener theory (based on restrictions on others’ posts)—applies with equal force to the Plaintiffs in this action, Kennedy v. Biden, 3:23-cv-00381 (W.D. La.). Even if they had not waived a speaker theory of standing, Plaintiffs here—like the Missouri plaintiffs— have not shown that any particular platform moderated any particular instance of their speech as a result of the actions of any particular Defendant, much less an imminent prospect that any platform would do so in the future absent an injunction against Defendants. Missouri requires both showings to establish standing. Rather, as the Supreme Court held in Missouri on a substantively identical record, the evidence instead shows that “the platforms moderated similar content long before any of the Government defendants engaged in the challenged conduct,” and the platforms “continued to exercise their independent judgment even after communications with the defendants began.”
In short: the Supreme Court just made it clear that for there to be standing, the plaintiff needs to show that (1) the government directed a social media platform to remove content and (2) the platform did so when it would not have otherwise done so.
But this is Judge Doughty we’re talking about, and he seems so primed to find government censorship that he would probably claim a park ranger telling visitors to stay on a trail is akin to censorship. So, in a recent ruling, he found that RFK Jr. absolutely has standing to sue the Biden administration. Of course, the only way he could do this was to just misrepresent everything yet again.
There is ample evidence in the record showing that Kennedy has been directly censored in the past. Not only was he a part of the alleged “Disinformation Dozen,” which was repeatedly flagged and/or censored at the behest of numerous Defendants, but he was also censored for his anti-vaccine and anti-COVID-19 rhetoric. Therefore, Kennedy has more than satisfied the first element for Article III standing, that is, he suffered an injury-in-fact when he was censored. The injury is traceable to the Government Defendants, as there were numerous orders that social-media companies censor the “Disinformation Dozen.” Finally, Kennedy has satisfied the third element of standing as this injury is likely to be redressed by a favorable judicial decision (in this case, a preliminary injunction).
So first off, there is ample evidence that Kennedy has had actively harmful disinformation he posted (mostly about vaccines) moderated. However, there is no evidence that it happened because of the government. It is true that the government did send some requests to Facebook, but none of them appear to be even remotely threatening or coercive. And as the Supreme Court made clear in the Murthy ruling, purely persuasive messaging — asking a private entity to do what it would do normally — is allowed (indeed, Justices Kagan and Kavanaugh both noted that when they worked for the federal government they often tried to persuade private sector folks to do things).
While Judge Doughty leans heavily on “The Disinformation Dozen,” that report was not produced by the government, but by a private non-profit, the Center for Countering Digital Hate. The facts show pretty clearly that Facebook never took that report as an order to remove anything. Some government officials did take that report as meaningful and did ask Facebook officials how they were dealing with the people on that list, but there’s no indication in the record that Facebook changed what it was doing in response to government pressure at all.
And here’s where Doughty drops into pure conspiracy theory gibberish.
First, he completely (embarrassingly) misrepresents a report from the Election Integrity Partnership called The Long Fuse. You can read the report yourself. Nothing in it is about government censorship at all. The report was a recap of how the EIP watched for election-related mis- and disinformation, which tended to be things around (1) misleading people about when, where, and how to vote, (2) impersonating election officials, and (3) falsely claiming election or voter fraud when there was none. As the report makes clear, EIP’s job was not even remotely related to “censorship.” It was about spotting trending information that might lead to problems with the election and sharing it with relevant stakeholders, and letting them decide what to do about it. And, as you read the report, the main thing everyone was focused on was counter-messaging that kind of speech when it came up, not “censorship.” The report is pretty clear on this:
All stakeholders must focus on predicting and pre-bunking false narratives, detecting mis- and disinformation as it occurs, and countering it whenever appropriate.
This is not about “censorship” or even “moderation.” It’s about “let’s think through what sorts of disinfo may occur, and have a plan on how to respond to better protect people from potential risks.”
All the EIP and the report were talking about was better preparing stakeholders to respond to misleading content, usually with more speech (fact-checking, responses, context, etc.). But today’s Trumpist Republican party seems to think that counter-messaging is a form of censorship itself. This is dangerously disconnected from reality.
The Long Fuse report keeps talking about more speech, not censorship or content removals. And while the report sometimes did talk about flagging information to platforms, it was to review under their own terms of service. It’s clear that the companies felt no pressure to remove content, because they didn’t remove very much of it.
As we’ve discussed in the past, the evidence in the report itself shows that platforms did not take action on the vast majority of the content reported by the EIP. Only 13% of content that was flagged was removed, and a huge percentage of those removals came from one company: TikTok.
Even moving past removals, the report shows that platforms only “took action” on 35% of the URLs that were reported, and most of the actions they did take were labeling (i.e., providing more speech that added context).
It was extremely rare that any content was removed, and it appeared to basically only happen in the most extreme cases where the content was really fraudulent (i.e., phishing attacks or fake official accounts). And the numbers here were skewed by the fact that TikTok was way more willing to take down content reported than anyone else (suggesting the percentages were even lower for Facebook/Twitter):
We find, overall, that platforms took action on 35% of URLs that we reported to them. 21% of URLs were labeled, 13% were removed, and 1% were soft blocked. No action was taken on 65%. TikTok had the highest action rate: actioning (in their case, their only action was removing) 64% of URLs that the EIP reported to their team.
Yet, to Judge Doughty, the Long Fuse report was entirely about the government using the EIP to censor content. First, he falsely claimed that the EIP was created by CISA, the Cybersecurity and Infrastructure Security Agency. This has long since been debunked, but is still believed by the nuttiest Trumpist conspiracy theorists, which appears to include Judge Doughty. But, even worse, he claims that the entire project was a project for censorship, which any plain reading of the document reveals is bullshit. This is just a flat-out misrepresentation by Judge Doughty:
The Long Fuse sought to censor both “misinformation” and “disinformation.” The report defined “misinformation” as “false, misleading, or exaggerated information or claims”. The stated goal of the EIP was “to detect and mitigate the impact of attempts to prevent or deter people from voting or to delegitimize election results.” Like the Virality Project, the EIP used “tickets” to identify alleged election misinformation and report it to social-media platforms.
Yes, you disinformation spreader, the goal was to “detect and mitigate” which means “respond to” not “censor.” You would know this if you actually paid attention and weren’t trying to tilt the scales to the conspiracy theorist plaintiff in front of you.
Even worse, Doughty then invents a totally fictional scenario in which the FBI wants to “censor” RFK Jr. and claims they could do so by alerting the EIP:
In the instant case, Kennedy has provided evidence showing that as a result of the actions of certain Government Defendants, he was restricted in the past. He has provided the Court with concrete links between his injuries and Defendants’ conduct. The Court finds that there is further risk for future risk injury here because Kennedy is a 2024 presidential candidate. For example, if, hypothetically, the FBI saw a piece of information related to the 2024 presidential election posted by the Kennedy campaign on social media that it deemed to be “misinformation,” then it reached out to CISA, who worked closely with the EIP, who then removed the posts, Kennedy would be censored by the action of one Government Defendant in response to another. Therefore, there is a risk of a real and immediate threat of repeated injury.
That’s a hallucination worse than anything you’d see from ChatGPT. That’s not how any of this worked. As the report makes clear, (1) CISA does not work with EIP to remove content, (2) EIP does not suggest anyone remove any content, let alone (as Doughty says) remove that content itself, and (3) the platforms don’t take any orders from EIP anyway. They mostly ignore most reports, which are purely informational, and they add more context (more speech!) to the majority of the reports they do react to. They only very rarely remove posts if they’re things like outright fraud or phishing.
Oh, and the EIP no longer exists and hasn’t existed in years.
And yet Doughty uses this hallucination to justify the claim that not only was RFK “censored” by the government, but he’s at great risk of it happening again because the FBI might do something it hasn’t done by pushing EIP, an operation that hasn’t existed in years, to do something it had no power to do in the first place.
How is this person a federal judge?
This is embarrassing. It’s basically chemtrails-level fiction writing from a federal judge, making up impossible scenarios to justify a ridiculous ruling.
This is Doughty doing his Doughtyiest. Just making up shit to justify something not found in the facts of the case. And, of course, from there the only thing to do is to go to the Fifth Circuit, which hasn’t been great on this either. But it also means that the Supreme Court’s unwillingness to clearly stamp this kind of bullshit out with its Murthy decision means that we need to go through this whole thing all over again.
RFK Jr. seems to believe that being a Kennedy and spouting anti-vax nonsense qualifies him to be President. Now, he’s taking his delusions to a whole new level by arguing that the Supreme Court’s Murthy decision means the government can’t even talk to social media companies anymore. Buckle up, folks, this is going to be a wild ride.
Vanity Fair recently had quite the takedown of RFK Jr. based on conversations with his own family members. It is made quite clear that RFK Jr. is not one to let facts get in the way of whatever nonsense he’s decided to claim to the world.
And while people can point to lots of high-profile ways in which that has played out, I’m going to point out one that is relevant to Techdirt’s general interests: RFK Jr. has been trying desperately to sue whoever he can think of to complain about getting booted from Facebook.
However, he also sued the Biden administration directly in 2023. He kept prattling on ignorantly, arguing that the administration is deliberately trying to stifle his speech (which is kind of hilarious, given that any time he talks, more people realize what a nutcase RFK Jr. actually is). RFK filed the lawsuit in the same court where Missouri/Louisiana and some other nonsense peddlers appeared to be having some success in their equally batshit lawsuit against the administration over social media moderation.
Soon after filing the case in the same court, where they were guaranteed to get the same judge, RFK sought to merge his case with the Missouri case. Judge Terry Doughty, after issuing his batshit crazy decision in the case, more or less agreed to merge Kennedy’s case into the Missouri v. Biden docket. He issued a similar injunction as the one he issued in that case, but put it on hold until ten days after the Supreme Court sent down its ruling in the original Missouri case.
As you likely now know, after getting a still crazy (but slightly less crazy) Fifth Circuit ruling, the Supreme Court took the case, newly dubbed Murthy v. Missouri, and made it clear that none of the plaintiffs could show standing. The majority opinion also made it quite clear that both the district court decision and the Fifth Circuit decision were crazy because they were willing to accept absolute nonsense as fact, when it was obviously not.
While that decision sent the case back down to the lower court, unless you were delusional and totally committed to believing things that were not true, you would realize that this basically meant that such a case had no chance to go anywhere.
Enter RFK Jr.
The day after the Supreme Court ruling came down, the DOJ did the proper thing and notified Judge Doughty of the Supreme Court opinion. The DOJ also pointed out that given the nature of the Supreme Court ruling, RFK Jr. also clearly lacked standing. So, rather than letting the injunction go into effect, the DOJ intended to file a motion asking Judge Doughty to “vacate” the injunction he had granted RFK.
While this Court’s stay remains in effect, the government intends to file with this Court a motion for an indicative ruling under Federal Rule of Civil Procedure 62.1 that the Court would vacate the preliminary injunction in Kennedy because the Kennedy plaintiffs (who relied exclusively on the same set of facts “before the Court in Missouri v. Biden,” ECF No. 6-1 at 2) lack standing under the Supreme Court’s analysis in that case. If the Court issues such a ruling, the government would seek a remand from the Fifth Circuit under Federal Rule of Appellate Procedure 12.1 to allow this Court to enter the requested vacatur. In the alternative, the government plans to ask this Court to stay the Kennedy preliminary injunction for the full duration of the pending appeal from that injunction, if the Court declines to enter the requested indicative ruling.
The DOJ also argued that the clock on the “10 days” until the injunction supposedly went into effect didn’t start ticking until the Supreme Court officially sent the decision to the lower court, which would be a month or so later:
Under Supreme Court Rule 45.3, the Supreme Court “will send” its judgment to the lower court “32 days after entry of the judgment, unless the Court or a Justice shortens or extends the time, or unless the parties stipulate that it be issued sooner.” The Supreme Court will accordingly send down its ruling on Monday, July 29, 32 days (plus a weekend day) from yesterday. The government understands this Court’s stay of the preliminary injunction in Kennedy to extend for ten days after that date—i.e., the date on which the Supreme Court “sends down” its ruling in Missouri.
RFK Jr’s lawyers jumped in to say “nuh uh” and to suggest that the injunction (which the Supreme Court had clearly rejected regarding the other plaintiffs in the case) should go into effect very soon.
Two days ago, on Wednesday, June 26, 2024, the Supreme Court handed down its ruling in the Missouri v. Biden case. See Murthy v. Missouri, No. 23-411, 2024 WL 3165801 (U.S. June 26, 2024). Accordingly, under the plain language of this Court’s ruling—and contrary to the Notice of Opinion filed yesterday by Defendants—it would appear that this Court’s stay will be “automatically lifted” on July 7, 2024—eleven days after Murthy was handed down—and that the preliminary injunction will, absent further judicial action, become operative on that day.
The DOJ then felt the need to file a “motion for clarification” from Judge Doughty. First, they point out that RFK’s lawyers are misrepresenting what Judge Doughty actually said in his ruling on the stay of the injunction:
Defendants disagree with the Kennedy Plaintiff’s interpretation, which does not accord with the Supreme Court’s rules governing the timing of when the Supreme Court “sends down” its opinions and judgments. The Kennedy Plaintiffs seize on the Court’s use of the phrase “handed down” at some points in its opinion—and if that were all the Court’s order said, then the Plaintiffs’ interpretation would be reasonable. But in the decretal language of its order—the part that has actual legal force—the Court unambiguously referred to the date on which the Supreme Court “sends down” its ruling. See Dkt. 38 at 23 (“IT IS FURTHER ORDERED that in light of the stay issued by the Supreme Court of the United States in Missouri v. Biden, this order is STAYED for ten (10) days after the Supreme Court sends down a ruling in Missouri v. Biden.”). Plaintiffs never acknowledge that language or attempt to square their interpretation with it.
But, even more importantly, the DOJ says, in effect, “hey, in light of SCOTUS saying ‘no standing’ for the other plaintiffs, how about we extend the stay on the injunction no matter what so we can brief you on why RFK also has no standing”:
In the alternative, if the Court adopts Plaintiffs’ characterization of the duration of the stay, Defendants request that this Court grant a 26-day extension of the stay beyond the expiration date urged by Plaintiffs, until and including Friday, August 2, 2024, to enable the parties to fully brief and this Court to decide (1) a motion by Defendants for an indicative ruling under Federal Rule of Civil Procedure 62.1 that the Court would vacate the preliminary injunction in Kennedy because the Kennedy plaintiffs lack Article III standing under the Supreme Court’s analysis in Murthy, and (2) in the alternative, a motion by Defendants for a stay pending appeal for the full duration of the pending appeal from that injunction, if the Court declines to enter the requested indicative ruling.
In response, RFK filed something saying that the DOJ should have requested this kind of clarification when Doughty first issued his “10 days” ruling:
If Defendants genuinely found the Court’s stay ruling unclear, or if they viewed eleven days as insufficient, they had five months to ask this Court or the Fifth Circuit for relief. Instead, Defendants sat on their hands, and now, five days after Murthy was handed down, Defendants move for “clarification” of a ruling that is already clear, and for the further stay of an injunction already on appeal.
But then, RFK goes on to argue (ridiculously, and wrongly) that he has much stronger arguments for standing on the basis of him being a laughably unqualified candidate for President.
The bottom line is that the Kennedy Plaintiffs have much stronger standing than did the Missouri plaintiffs, and Mr. Kennedy in particular, as a candidate for President who is still being brutally censored on major social media platforms (just as this Court predicted) , urgently requires and is entitled to vindication of his rights
But that’s not what gives you standing. What gives you standing, Bobby Jr., is actual evidence that the government coerced social media companies to shut down your accounts, and that it didn’t happen because your anti-vax nonsense violated their policies. And RFK can’t show that because it didn’t actually happen.
However, they also argue that the right place for this discussion is not in Judge Doughty’s courtroom, but rather at the Fifth Circuit. As we’ll discuss below, this was the most compelling bit to Judge Doughty who decided that this is out of his courtroom for now.
The DOJ then responded to this even more stringently, pointing out that RFK obviously has no standing, based on the Murthy ruling.
First, the Supreme Court’s decision in Missouri demonstrates that the Kennedy Plaintiffs lack standing to obtain a preliminary injunction. The Kennedy Plaintiffs stated that they “do not rest their claims on censorship of their own speech. Rather, Plaintiffs have brought this case as (and on behalf of) social media users, whose right to an uncensored public square is being systematically violated.” Dkt. 20 at 2.1 And this is the sole basis for standing that this Court found for Plaintiff Sampognaro, who “submitted no direct evidence of content suppression.” Dkt. 38 at 11. But the Supreme Court rejected this “startlingly broad” theory, “as it would grant all socialmedia users the right to sue over someone else’s censorship—at least so long as they claim an interest in that person’s speech.” Missouri, 2024 WL 3165801, at 16. And the Court held that such a theory fails to establish an Article III injury absent “any specific instance of content moderation” of a third-party to whom Plaintiff had a “concrete, specific connection,” “that caused [plaintiff] identifiable harm,” id. at 16-17. Plaintiffs fail to supply any such example.
Nor can the Kennedy Plaintiffs rely on a direct censorship theory of standing following Missouri because they have failed to show any future injury that is traceable to the government conduct they seek to enjoin—much less any future injury that is traceable to each of the governmental Defendants covered by the preliminary injunction. Id. at 7-8; see id. at 9 (“‘[P]laintiffs must demonstrate standing for each claim that they press’ against each defendant, ‘and for each form of relief that they seek.’”) (citation omitted). In Missouri, the Supreme Court explained that “[t]he primary weakness in” the plaintiffs’ reliance on “past restrictions” of their content by social-media platforms is that this Court made no “specific causation findings with respect to any discrete instance of content moderation”—in other words, no findings that any act of content moderation was attributable to actions by Defendants (much less a particular Defendant) as opposed to the third-party platforms’ exercise of their independent discretion. Id. at *8. The Kennedy Plaintiffs motion for a preliminary injunction, which “submit[s] no new evidence,” Dkt. 6-1 at 1, did not rectify that deficiency.
Furthermore:
Kennedy adduced no evidence establishing that any social-media company’s action against his accounts can be attributed to the actions of a Defendant. In fact, the record evidence is to the contrary: Facebook explained that it removed pages and accounts linked to the “[D]isinformation [D]ozen” “for violating [Facebook’s] policies,” and noted that it was not imposing a complete ban because “the remaining accounts associated with these individuals [were] not posting content that [broke Facebook’s] rules.” Missouri, Dkt. 10-1, Ex. 37 at 1. That suggests the relevant actions reflected the platform’s own decisions, not any governmental action.
The DOJ then also points to the recent Vullo decision from the Supreme Court, which reinforced the standards from Bantam Books in deciding whether or not a government official has coerced a third party to censor someone. The DOJ says that there’s no way RFK can meet the standards set forth in that decision:
As the Supreme Court recently emphasized in a decision issued after the Kennedy preliminary injunction, it is perfectly “permissible” for the government to “attempt[] to persuade” a private party not to disseminate speech, National Rifle Association, 602 U.S. at 188, so even a showing that platforms would not have taken content-moderation actions against plaintiffs’ speech but for the government’s actions would not suffice to show that those actions violated the First Amendment. Rather, the relevant question is whether the government’s “conduct … , viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff’s speech.”
The Kennedy Plaintiffs are unlikely to be able to demonstrate on the merits that the government coerced the platforms to act given the difficulties identified by the Supreme Court in even establishing that the government’s actions influenced the platforms. See Missouri, 2024 WL 3165801, at *13 n.8 (“acknowledging the real possibility that Facebook acted independently in suppressing [the plaintiff’s] content”). Accordingly, the injunction should be dissolved
The DOJ also points out that Doughty should stay the injunction if only because the issue is going to have to be dealt with by the Fifth Circuit anyway, and it’s standard practice to stay such an injunction until an appeal is decided. Also, they point out that if the Kennedy injunction goes into effect, it will bar all sorts of communications that the Supreme Court in Murthy said were perfectly normal, reasonable communications between government officials and private companies.
Because the universal preliminary injunction here is identical to the injunction in Missouri, it also will inflict exactly the same harms that the Supreme Court found sufficient to issue a stay in that case
But… the very next day, Judge Doughty basically wiped his hands of the issue, saying that the case is out of his court, and if there’s an issue they should take it up with the Fifth Circuit:
This Court lacks jurisdiction to address Defendants’ request. Generally, a notice of appeal divests the district court of jurisdiction over the judgment or order that is the subject of the appeal. Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., Inc., 73 F.3d 546, 578 (5th Cir. 1996). The Court in Sierra Club noted that Fed. R. Civ. P. Rule 62(d) provides an exception to this rule when an appeal is taken from an interlocutory or final judgment granting, dissolving or denying an injunction where the district court may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party. Id. The court in Sierra Club further noted that the authority granted by Rule 62(c) does not extend to the dissolution of an injunction and is limited to maintaining the status quo.
But wouldn’t maintaining the status quo at least mean maintaining the stay that blocks the injunction from going into effect? He’s doing the reverse of “maintaining the status quo” by apparently letting his original injunction go into effect. Which means, in theory, that the government is yet again barred from talking to social media companies even as the Supreme Court just said that was stupid.
And thus… it seems that the DOJ is likely to make these arguments again before the Fifth Circuit, which is where logic and common sense go to die.
Apparently, everything really is bigger in Texas, including the audacity of federal judges who think they’re above the rules. In a stunning display of hypocrisy, the Northern District of Texas has decided that new judicial shopping rules just don’t apply to them. Because that would make it harder to win culture war fights. But if you want to undermine what little respect is left for the judiciary, this is exactly how to do it. This is brazen partisanship, mixed with a belief that the rules just don’t apply when you don’t like them.
Just recently we wrote about the new policy that came down from the Judicial Conference, which is run by Chief Justice John Roberts. The policy states that when cases are filed in a courthouse, they should be randomly assigned to any judge in the district, rather than keeping the cases in that specific division courthouse.
The issue here first really came up in some patent cases. Some federal courthouses really only have one or sometimes two judges. So, plaintiffs were able to effectively guarantee cases would get before those judges. Soon after this became known in patent cases, a bunch of MAGA Trumpists realized they could use this to their advantage and focused on filing cases that brought up key culture war nonsense in the courts of Terry Doughty or Matthew Kacsmaryk, who would then issue batshit crazy rulings, often with broad injunctions.
All of this really harmed whatever respect was left for the judiciary, and John Roberts knew it. He had mentioned the problem two years ago and seemed to recognize the harm it did to respect for the judiciary. But it still took two more years for the Judicial Conference (which is Roberts and the Chief Judges of all the Appellate courts) to put out this policy note.
And almost immediately, Republicans freaked out. Two of the worst 5th Circuit Judges, James Ho and Edith Jones, whined about how unfair this was. A bunch of Republican senators sent an angry letter to courts telling them to ignore the new policy. Hilariously, Mitch McConnell, John Cornyn, and Thom Tillis were the senators who sent the letter. Tillis’ name stands out because in 2021 he was the senator who sent a letter to Roberts complaining about this practice and asking Roberts to fix it.
Here is from Tillis’ letter in 2021:
Our understanding is that in some judicial districts, plaintiffs are allowed to request their case be heard within a particular division. When the requested division has only one judge, this allows plaintiffs to effectively select the judge who will hear their case. We believe this creates an appearance of impropriety which damages the federal judiciary’s reputation for the fair and equal administration of the law. Worse still, such behavior by plaintiffs can lead individual judges to engage in inappropriate conduct intended to attract and retain certain types of cases and litigants.
And here’s the letter Tillis just sent to courts:
It’s not our place to opine on how you should best manage the caseload of your court… It is your job to manage the caseload of your court according to the dictates of local circumstances and convention….
So three years ago, it was a problem in which Tillis had to alert the Chief Justice and ask him to fix it because it was creating “an appearance of impropriety.” Now, when this tactic is regularly used for partisan culture war nonsense, Tillis suddenly says it’s not his place to opine?
I’m going to suggest that Senator Thom Tillis is full of shit.
As Joe Patrice at Above the Law noted, all these Republicans whining about it were very much a “hit dog hollers” kinda situation, as they know the system is being abused to their advantage, and they want to keep it that way, even when it exposes the hypocrisy of a senator like Thom Tillis. Hypocrisy is no longer a liability in politics.
Anyway, given all that, the Judicial Conference walked back its original policy decision and made it clear that the new policy was at each court’s “discretion.”
You know where this is heading next, don’t you?
The Northern District of Texas, where Matthew Kacsmaryk is one of 11 judges, but the only judge in the Amarillo division, has announced that it will not change how it distributes cases.
In his letter, Godbey, an appointee of Republican former President George W. Bush, said the judges in his district met on Wednesday. “The consensus was not to make any change to our case assignment process at this time,” he said.
So anyone wanting a pretty much automatic GOP-culture war win just needs to file cases in Amarillo, and you’ve got your man.
In theory, this issue could eventually be solved by Congress. This seems unlikely now that it’s turned into a stupid partisan political football (we see you Tillis). The Supreme Court could also eventually try to take some action. It has cracked down on jurisdiction shopping in the past. Even Justice Gorsuch seems pretty fed up with Kacsmaryk’s nonsense (he also made an offhand comment suggesting he was upset with Doughty in the Murthy case as well for issuing a broad injunction).
So, it’s possible the Supreme Court could step in and fix things, but that would likely be years away. Until then, the courts are signaling loud and clear: if you want a judge who will rule in a particularly partisan way, the 5th Circuit is happy for you to file those cases in Amarillo. Apparently, the “appearance of impropriety” is no matter when the courts can strip rights away and win stupid culture war fights.
This took way too long, but it appears that Supreme Court Chief Justice John Roberts and the Judicial Conference have finally decided to crack down on the serious problem of judicial shopping in the federal courts. They’ve set a new policy that will hopefully result in a more random allocation of cases to judges.
Jurisdiction shopping has been a problem for quite some time. You could argue that the creation of the Court of Appeals for the Federal Circuit (CAFC) was a response to patent litigation that involved repeated jurisdiction shopping. Of course, rather than fixing the underlying problem, they just set up a single appeals court that would hear all patent cases, which resulted in a weird sort of “judicial capture” of the Federal Circuit.
And, rather than fix it, the judicial shopping just shifted a bit after CAFC was created. Specific district courts, initially in East Texas (first Marshall, then Tyler), established themselves as patent-friendly court jurisdictions, leading to all sorts of shenanigans. This included frequent patent litigants buying a skating rink and a literal bull to ingratiate themselves with the judges and juries. The Supreme Court tried to put a stop to this, though it took a few tries to sorta get it to work.
So, then, stuff shifted again, and we had the crazy situation of Judge Alan Albright. He literally started promoting his district court (in West, rather than East, Texas) as a good one for patent litigants to file in. He was the only judge in the Waco courthouse, so all such cases filed in Waco would get assigned to himself.
This became such a big issue that in 2021, two Senators, Pat Leahy and Thom Tillis, wrote a letter to Justice Roberts asking that something be done to fix this. In 2022, the Judicial Conference (led by Roberts) responded, saying it was aware of the issue, but didn’t seem to do much about it. In 2023, even the ABA spoke up about it.
And, by then, we saw that this kind of judicial shopping was happening beyond just the patent realm. Over and over again we’ve seen cases — especially cases involving culture war or politically charged topics — being filed in courts with just a single, or a very small number of judges, hoping to get one of the batshit crazy judges who will bless anything. Indeed, there are now a few judges, such as Terry Doughty, Matthew Kacsmaryk, and Aileen Cannon, whose names regularly show up in discussions about judicial shopping.
It’s becoming bigger and bigger news as the public is learning more and more about this type of judicial shopping, which undermines respect in the rule of law, as well as respect of the judicial system itself.
So, now, finally, years later, the Judicial Conference has said it’s going to start making a change. In certain types of cases, they will be randomly assigned to judges across the entire district, rather than limiting judicial assignments just to the specific court where the case was filed. This will increase (sometimes significantly) the pool of judges who might be assigned the case:
The Judicial Conference of the United States has strengthened the policy governing random case assignment, limiting the ability of litigants to effectively choose judges in certain cases by where they file a lawsuit.
The policy addresses all civil actions that seek to bar or mandate state or federal actions, “whether by declaratory judgment and/or any form of injunctive relief.” In such cases, judges would be assigned through a district-wide random selection process.
The key here is the “district-wide” random selection, as opposed to just in the specific court within that district.
It’s a little strange that this only applies to cases that are about bars or mandates on federal actions, but it makes a bit of sense, given that those have been the most high-profile cases of judicial shopping.
And the Judicial Conference isn’t being shy as to why they’re doing this. They know it’s a problem:
Chief Justice John G. Roberts, Jr., referenced this letter in his 2021 Year-End Report on the Federal Judiciary, calling for a study of judicial assignment practices in patent cases.
“Senators from both sides of the aisle have expressed concern that case assignment procedures … might, in effect, enable the plaintiff to select a particular judge to hear a case,” Roberts said. During the patent-case study, the Court Administration and Case Management Committee (CACM) determined that similar issues might occur in bankruptcy and other types of civil litigation. Public debate grew when several highly controversial lawsuits, seeking nationwide injunctions against federal government policies, were filed in single-judge court divisions.
In submitting the proposed policy to the Judicial Conference, the CACM Committee said that some local case assignment plans risked creating an appearance of “judge shopping.” The committee also noted that the value of trying a civil case in the nearest court division becomes less important when the impact of a ruling might be felt statewide or even nationally.
Of course, we’ll have to see how this actually plays out, and what new games litigants come up with to get around it. Because, if the past is any indication, this problem seems unlikely to fully go away. Maybe the courts will take another step towards ending it in another six years or so.
We’re going to go slow on this one, because there’s a lot of background and details and nuance to get into in Friday’s 5th Circuit appeals court ruling in the Missouri v. Biden case that initially resulted in a batshit crazy 4th of July ruling regarding the US government “jawboning” social media companies. The reporting on the 5th Circuit ruling has been kinda atrocious, perhaps because the end result of the ruling is this:
The district court’s judgment is AFFIRMED with respect to the White House, the Surgeon General, the CDC, and the FBI, and REVERSED as to all other officials. The preliminary injunction is VACATED except for prohibition number six, which is MODIFIED as set forth herein. The Appellants’ motion for a stay pending appeal is DENIED as moot. The Appellants’ request to extend the administrative stay for ten days following the date hereof pending an application to the Supreme Court of the United States is GRANTED, and the matter is STAYED.
Affirmed, reversed, vacated, modified, denied, granted, and stayed. All in one. There’s… a lot going on in there, and a lot of reporters aren’t familiar enough with the details, the history, or the law to figure out what’s going on. Thus, they report just on the bottom line, which is that the court is still limiting the White House. But it’s at a much, much, much lower level than the district court did, and this time it’s way more consistent with the 1st Amendment.
The real summary is this: the appeals court ditched nine out of the ten “prohibitions” that the district court put on the government, and massively narrowed the only remaining one, bringing it down to a reasonable level (telling the U.S. government that it cannot coerce social media companies, which, uh, yes, that’s exactly correct).
But then in applying its own (perhaps surprisingly, very good) analysis, the 5th Circuit did so in a slightly weird way. And then also seems to contradict the [checks notes] 5th Circuit in a different case. But we’ll get to that in another post.
Much of the reporting on this suggests it was a big loss for the Biden administration. The reality is that it’s a mostly appropriate slap on the wrist that hopefully will keep the administration from straying too close to the 1st Amendment line again. It basically threw out 9.5 out of 10 “prohibitions” placed by the lower court, and even on the half a prohibition it left, it said it didn’t apply to the parts of the government that the GOP keeps insisting were the centerpieces of the giant conspiracy they made up in their minds. The court finds that CISA, Anthony Fauci’s NIAID, and the State Department did not do anything wrong and are no longer subject to any prohibitions.
The details: the state Attorneys General of Missouri and Louisiana sued the Biden administration with some bizarrely stupid theories about the government forcing websites to take down content they disagreed with. The case was brought in a federal court district with a single Trump-appointed judge. The case was allowed to move forward by that judge, turning it into a giant fishing expedition into all sorts of government communications to the social media companies, which were then presented to the judge out of context and in a misleading manner. The original nonsense theories were mostly discarded (because they were nonsense), but by quoting some emails out of context, the states (and a few nonsense peddlers they added as plaintiffs to have standing), were able to convince the judges that something bad was going on.
As we noted in our analysis of the original ruling, they did turn up a few questionable emails from White House officials who were stupidly trying to act tough about disinformation on social media. But even then, things were taken out of context. For example, I highlighted this quote from the original ruling and called it out as obviously inappropriate by the White House:
Things apparently became tense between the White House and Facebook after that, culminating in Flaherty’s July 15, 2021 email to Facebook, in which Flaherty stated: “Are you guys fucking serious? I want an answer on what happened here and I want it today.”
Except… if you look at it in context, the email has nothing to do with content moderation. The White House had noticed that the @potus Instagram account was having some issues, and Meta told the company that “the technical issues that had been affecting follower growth on @potus have been resolved.” A WH person received this and asked for more details. Meta responded with “it was an internal technical issue that we can’t get into, but it’s now resolved and should not happen again.” Someone then cc’d Rob Flaherty, and the quote above was in response to that. That is, it was about a technical issue that had prevented the @potus account from getting more followers, and he wanted details about how that happened.
So… look, I’d still argue that Flaherty was totally out of line here, and his response was entirely inappropriate from a professional standpoint. But it had literally nothing to do with content moderation issues or pressuring the company to remove disinformation. So it’s hard to see how it was a 1st Amendment violation. Yet, Judge Terry Doughty presented it in his ruling as if that line was about the removal of COVID disinfo. It is true that Flaherty had, months earlier, asked Facebook for more details about how the company was handling COVID disinfo, but those messages do not come across as threatening in any way, just asking for info.
The only way to make them seem threatening was to then include Flaherty’s angry message from months later, eliding entirely what it was about, and pretending that it was actually a continuation of the earlier conversation about COVID disinfo. Except that it wasn’t. Did Doughty not know this? Or did he pretend? I have no idea.
Doughty somehow framed this and a few other questionably out of context things as “a far-reaching and widespread censorship campaign.” As we noted in our original post, he literally inserted words that did not exist in a quote by Renee DiResta to make this argument. He claimed the following:
According to DiResta, the EIP was designed to “get around unclear legal authorities, including very real First Amendment questions” that would arise if CISA or other government agencies were to monitor and flag information for censorship on social media.
Except, if you read DiResta’s quote, “get around” does not actually show up anywhere. Doughty just added that out of thin air, which makes me think that perhaps he also knew he was misrepresenting the context of Flaherty’s comment.
Either way, Doughty’s quote from DiResta is a judicial fiction. He inserted words she never used to change the meaning of what was said. What DiResta is actually saying is that they set up EIP as a way to help facilitate information sharing, not to “get around” the “very real First Amendment questions,” and also not to encourage removal of information, but to help social media companies and governments counter and respond to disinformation around elections (which they did for things like misleading election procedures). That is, the quote here is about respecting the 1st Amendment, not “getting around” it. Yet, Doughty added “get around” to pretend otherwise.
He then issued a wide-ranging list of 10 prohibitions that were so broad I heard from multiple people within tech companies that the federal government canceled meetings with them on important cybersecurity issues, because they were afraid that any such meeting might violate the injunction.
So the DOJ appealed, and the case went to the 5th Circuit, which has a history of going… nutty. However, this ruling is mostly not nutty. It’s actually a very thorough and careful analysis of the standards for when the government steps over over the line in violating the 1st Amendment rights by pressuring speech suppression. As we’ve detailed for years, the line is whether or not the government was being coercive. The government is very much allowed to use its own voice to persuade. But when it is coercive, it steps over the line.
The appeals court analysis on this is very thorough and right on, as it borrows the important and useful precedents from other circuits that we’ve talked about for years, agreeing with all of them. Where is the line between persuasion and coercion?
Next, we take coercion—a separate and distinct means of satisfying the close nexus test. Generally speaking, if the government compels the private party’s decision, the result will be considered a state action. Blum, 457 U.S. at 1004. So, what is coercion? We know that simply “being regulated by the State does not make one a state actor.” Halleck, 139 S. Ct. at 1932. Coercion, too, must be something more. But, distinguishing coercion from persuasion is a more nuanced task than doing the same for encouragement. Encouragement is evidenced by an exercise of active, meaningful control, whether by entanglement in the party’s decision-making process or direct involvement in carrying out the decision itself. Therefore, it may be more noticeable and, consequently, more distinguishable from persuasion. Coercion, on the other hand, may be more subtle. After all, the state may advocate—even forcefully—on behalf of its positions
It points to the key case that all of these cases always lead back to, the important Bantam Books v. Sullivan case that is generally seen as the original case on “jawboning” (government coercion to suppress speech):
That is not to say that coercion is always difficult to identify. Sometimes, coercion is obvious. Take Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963). There, the Rhode Island Commission to Encourage Morality—a state-created entity—sought to stop the distribution of obscene books to kids. Id. at 59. So, it sent a letter to a book distributor with a list of verboten books and requested that they be taken off the shelves. Id. at 61–64. That request conveniently noted that compliance would “eliminate the necessity of our recommending prosecution to the Attorney General’s department.” Id. at 62 n.5. Per the Commission’s request, police officers followed up to make sure the books were removed. Id. at 68. The Court concluded that this “system of informal censorship,” which was “clearly [meant] to intimidate” the recipients through “threat of [] legal sanctions and other means of coercion” rendered the distributors’ decision to remove the books a state action. Id. at 64, 67, 71–72. Given Bantam Books, not-so subtle asks accompanied by a “system” of pressure (e.g., threats and followups) are clearly coercive.
But, the panel notes, that level of coercion is not always present, but it doesn’t mean that other actions aren’t more subtly coercive. Since the 5th Circuit doesn’t currently have a test for figuring out if speech is coercive, it adopts the same tests that were recently used in the 2nd Circuit with the NRA v. Vullo case, where the NRA went after a NY state official who encouraged insurance companies to reconsider issuing NRA-endorsed insurance policies. The 2nd Circuit ran through a test and found that this urging was an attempt at persuasion and not coercive. The 5th Circuit also cites the 9th Circuit, which even more recently tossed out a case claiming that Elizabeth Warren’s comments to Amazon regarding an anti-vaxxer’s book were coercive, ruling they were merely an attempt to persuade. Both cases take a pretty thoughtful approach to determining where the line is, so it’s good to see the 5th Circuit adopt a similar test.
For coercion, we ask if the government compelled the decision by, through threats or otherwise, intimating that some form of punishment will follow a failure to comply. Vullo, 49 F.4th at 715. Sometimes, that is obvious from the facts. See, e.g., Bantam Books, 372 U.S. at 62–63 (a mafiosi-style threat of referral to the Attorney General accompanied with persistent pressure and follow-ups). But, more often, it is not. So, to help distinguish permissible persuasion from impermissible coercion, we turn to the Second (and Ninth) Circuit’s four-factor test. Again, honing in on whether the government “intimat[ed] that some form of punishment” will follow a “failure to accede,” we parse the speaker’s messages to assess the (1) word choice and tone, including the overall “tenor” of the parties’ relationship; (2) the recipient’s perception; (3) the presence of authority, which includes whether it is reasonable to fear retaliation; and (4) whether the speaker refers to adverse consequences. Vullo, 49 F.4th at 715; see also Warren, 66 F.4th at 1207.
So, the 5th Circuit adopts a strong test to say when a government employee oversteps the line, and then looks to apply it. I’m a little surprised that the court then finds that some defendants probably did cross that line, mainly the White House and the Surgeon General’s office. I’m not completely surprised by this, as it did appear that both had certainly walked way too close to the line, and we had called out the White House for stupidly doing so. But… if that’s the case, the 5th Circuit should really show how they did so, and it does not do a very good job. It admits that the White House and the Surgeon General are free to talk to platforms about misinformation and even to advocate for positions:
Generally speaking, officials from the White House and the Surgeon General’s office had extensive, organized communications with platforms. They met regularly, traded information and reports, and worked together on a wide range of efforts. That working relationship was, at times, sweeping. Still, those facts alone likely are not problematic from a First-Amendment perspective.
So where does it go over the line? When the White House threatened to hit the companies with Section 230 reform if they didn’t clean up their sites! The ruling notes that even pressuring companies to remove content in strong language might not cross the line. But threatening regulatory reforms could:
That alone may be enough for us to find coercion. Like in Bantam Books, the officials here set about to force the platforms to remove metaphorical books from their shelves. It is uncontested that, between the White House and the Surgeon General’s office, government officials asked the platforms to remove undesirable posts and users from their platforms, sent follow-up messages of condemnation when they did not, and publicly called on the platforms to act. When the officials’ demands were not met, the platforms received promises of legal regime changes, enforcement actions, and other unspoken threats. That was likely coercive
Still… here the ruling is kinda weak. The panel notes that even with what’s said above the “officials’ demeanor” matters, and that includes their “tone.” To show that the tone was “threatening,” the panel… again quotes Flaherty’s demand for answers “immediately,” repeating Doughty’s false idea that that comment was about content moderation. It was not. The court does cite to some other “tone” issues, but again provides no context for them, and I’m not going to track down every single one.
Next, the court says we can tell that the White House’s statements were coercive because: “When officials asked for content to be removed, the platforms took it down.” Except, as we’ve reported before, that’s just not true. The transparency reports from the companies show how they regularly ignored requests from the government. And the EIP reporting system that was at the center of the lawsuit, and which many have insisted was the smoking gun, showed that the tech companies “took action” on only 35% of items. And even that number is too high, because TikTok was the most aggressive company covered, and they took action on 64% of reported URLs, meaning Facebook, Twitter, etc., took action on way less than 35%. And even that exaggerates the amount of influence because “take action” did not just mean “take down.” Indeed, the report said that only 13% of reported content was “removed.”
So, um, how does the 5th Circuit claim that “when officials asked for content to be removed, the platforms took it down”? The data simply doesn’t support that claim, unless they’re talking about some other set of requests.
One area where the court does make some good points is calling out — as we ourselves did — just how stupid it was for Joe Biden to claim that the websites were “killing people.” Of course, the court leaves out that three days later, Biden himself admitted that his original words were too strong, and that “Facebook isn’t killing people.” Somehow, only the first quote (which was admittedly stupid and wrong) makes it into the 5th Circuit opinion:
Here, the officials made express threats and, at the very least, leaned into the inherent authority of the President’s office. The officials made inflammatory accusations, such as saying that the platforms were “poison[ing]” the public, and “killing people.”
So… I’m a bit torn here. I wasn’t happy with the White House making these statements and said so at the time. But they didn’t strike me as anywhere near going over the coercive line. This court sees it differently, but seems to take a lot of commentary out of context to do so.
The concern about the FBI is similar. The court seems to read things totally out of context:
Fourth, the platforms clearly perceived the FBI’s messages as threats. For example, right before the 2022 congressional election, the FBI warned the platforms of “hack and dump” operations from “state-sponsored actors” that would spread misinformation through their sites. In doing so, the FBI officials leaned into their inherent authority. So, the platforms reacted as expected—by taking down content, including posts and accounts that originated from the United States, in direct compliance with the request.
But… that is not how anyone has described those discussions. I’ve seen multiple transcripts and interviews of people at the platforms who were in the meetings where “hack and dump” were discussed, and the tenor was more “be aware of this, as it may come from a foreign effort to spread disinfo about the election,” coming with no threat or coercion — just simply “be on the lookout” for this. It’s classic information sharing.
And the platforms had reason to be on the lookout for such things anyway. If the FBI came to Twitter and said “we’ve learned of a zero day hack that can allow hackers into your back end,” and Twitter responded by properly locking down their systems… would that be Twitter “perceiving the messages as threats,” or Twitter taking useful information from the FBI and acting accordingly? Everything I’ve seen suggests the latter.
Even stranger is the claim that the CDC was coercive. The CDC has literally zero power over the platforms. It has no regulatory power over them and now law enforcement power. So I can’t see how it was coercive at all. Here, the 5th Circuit just kinda wings it. After admitting that the CDC lacked any sort of power over the sites, it basically says “but the sites relied on info from the CDC, so it must have been coercive.”
Specifically, CDC officials directly impacted the platforms’ moderation policies. For example, in meetings with the CDC, the platforms actively sought to “get into [] policy stuff” and run their moderation policies by the CDC to determine whether the platforms’ standards were “in the right place.” Ultimately, the platforms came to heavily rely on the CDC. They adopted rule changes meant to implement the CDC’s guidance. As one platform said, they “were able to make [changes to the ‘misinfo policies’] based on the conversation [they] had last week with the CDC,” and they “immediately updated [their] policies globally” following another meeting. And, those adoptions led the platforms to make moderation decisions based entirely on the CDC’s say-so—“[t]here are several claims that we will be able to remove as soon as the CDC debunks them; until then, we are unable to remove them.” That dependence, at times, was total. For example, one platform asked the CDC how it should approach certain content and even asked the CDC to double check and proofread its proposed labels.
So… one interpretation of that is that the CDC was controlling site moderation practices. But another, more charitable (and frankly, from conversations I’ve had, way more accurate) interpretation was that we were in the middle of a fucking pandemic where there was no good info, and many websites decided (correctly) that they didn’t have epidemiologists on staff, and therefore it made sense to ask the experts what information was legit and what was not, based on what they knew at the time.
Note that in the paragraph above, the one that the 5th Circuit uses to claim that the platform polices were controlled by the CDC, it admits that the sites were reaching out to the CDC themselves, asking them for info. That… doesn’t sound coercive. That sounds like trust & safety teams recognizing that they’re not the experts in a very serious and rapidly changing crisis… and asking the experts.
Now, there were perhaps reasons that websites should have been less willing to just go with the CDC’s recommendations, but would you rather ask expert epidemiologists, or the team who most recently was trying to stop spam on your platform? It seems, kinda logical to ask the CDC, and wait until they confirmed that something was false before taking action. But alas.
Still, even with those three parts of the administration being deemed as crossing the line, most of the rest of the opinion is good. Despite all of the nonsense conspiracy theories about CISA, which were at the center of the case according to many, the 5th Circuit finds no evidence of any coercion there, and releases them from any of the restrictions.
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.
Ditto for Fauci’s NIAID and the State Department (both of which were part of nonsense conspiracy theories). The Court says they didn’t cross the line either.
So I think the test the 5th Circuit used is correct (and matches other circuits). I find its application of the test to the White House kinda questionable, but it actually doesn’t bother me that much. With the FBI, the justification seems really weak, but frankly, the FBI should not be involved in any content moderation issues anyway, so… not a huge deal. The CDC part is the only part that seems super ridiculous as opposed to just borderline.
But saying CISA, NIAID and the State Department didn’t cross the line is good to see.
And then, even for the parts the court said did cross the line, the 5th Circuit so incredibly waters down the injunction from the massive, overbroad list of 10 “prohibited activities,” that… I don’t mind it. The court immediately kicks out 9 out of the 10 prohibited activities:
The preliminary injunction here is both vague and broader than necessary to remedy the Plaintiffs’ injuries, as shown at this preliminary juncture. As an initial matter, it is axiomatic that an injunction is overbroad if it enjoins a defendant from engaging in legal conduct. Nine of the preliminary injunction’s ten prohibitions risk doing just that. Moreover, many of the provisions are duplicative of each other and thus unnecessary.
Prohibitions one, two, three, four, five, and seven prohibit the officials from engaging in, essentially, any action “for the purpose of urging, encouraging, pressuring, or inducing” content moderation. But “urging, encouraging, pressuring” or even “inducing” action does not violate the Constitution unless and until such conduct crosses the line into coercion or significant encouragement. Compare Walker, 576 U.S. at 208 (“[A]s a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position.”), Finley, 524 U.S. at 598 (Scalia, J., concurring in judgment) (“It is the very business of government to favor and disfavor points of view . . . .”), and Vullo, 49 F.4th at 717 (holding statements “encouraging” companies to evaluate risk of doing business with the plaintiff did not violate the Constitution where the statements did not “intimate that some form of punishment or adverse regulatory action would follow the failure to accede to the request”), with Blum, 457 U.S. at 1004, and O’Handley, 62 F.4th at 1158 (“In deciding whether the government may urge a private party to remove (or refrain from engaging in) protected speech, we have drawn a sharp distinction between attempts to convince and attempts to coerce.”). These provisions also tend to overlap with each other, barring various actions that may cross the line into coercion. There is no need to try to spell out every activity that the government could possibly engage in that may run afoul of the Plaintiffs’ First Amendment rights as long the unlawful conduct is prohibited.
The eighth, ninth, and tenth provisions likewise may be unnecessary to ensure Plaintiffs’ relief. A government actor generally does not violate the First Amendment by simply “following up with social-media companies” about content-moderation, “requesting content reports from social-media companies” concerning their content-moderation, or asking social media companies to “Be on The Lookout” for certain posts.23 Plaintiffs have not carried their burden to show that these activities must be enjoined to afford Plaintiffs full relief.
The 5th Circuit, thankfully, calls for an extra special smackdown Judge Doughty’s ridiculous prohibition on any officials collaborating with the researchers at Stanford and the University of Washington who study disinformation, noting that this prohibition itself likely violates the 1st Amendment:
Finally, the fifth prohibition—which bars the officials from “collaborating, coordinating, partnering, switchboarding, and/or jointly working with the Election Integrity Partnership, the Virality Project, the Stanford Internet Observatory, or any like project or group” to engage in the same activities the officials are proscribed from doing on their own— may implicate private, third-party actors that are not parties in this case and that may be entitled to their own First Amendment protections. Because the provision fails to identify the specific parties that are subject to the prohibitions, see Scott, 826 F.3d at 209, 213, and “exceeds the scope of the parties’ presentation,” OCA-Greater Houston v. Texas, 867 F.3d 604, 616 (5th Cir. 2017), Plaintiffs have not shown that the inclusion of these third parties is necessary to remedy their injury. So, this provision cannot stand at this juncture
That leaves just a single prohibition. Prohibition six, which barred “threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech.” But, the court rightly notes that even that one remaining prohibition clearly goes too far and would suppress protected speech, and thus cuts it back even further:
That leaves provision six, which bars the officials from “threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech.” But, those terms could also capture otherwise legal speech. So, the injunction’s language must be further tailored to exclusively target illegal conduct and provide the officials with additional guidance or instruction on what behavior is prohibited.
So, the 5th Circuit changes that one prohibition to be significantly limited. The new version reads:
Defendants, and their employees and agents, shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies’ decision-making processes.
And that’s… good? I mean, it’s really good. It’s basically restating exactly what all the courts have been saying all along: the government can’t coerce companies regarding their content moderation practices.
The court also makes it clear that CISA, NIAID, and the State Department are excluded from this injunction, though I’d argue that the 1st Amendment already precludes the behavior in that injunction anyway, so they already can’t do those things (and there remains no evidence that they did).
So to summarize all of this, I’d argue that the 5th Circuit got this mostly right, and corrected most of the long list of terrible things that Judge Doughty put in his original opinion and injunction. The only aspect that’s a little wonky is that it feels like the 5th Circuit applied the test for coercion in a weird way with regards to the White House, the FBI, and the CDC, often by taking things dramatically out of context.
But the “harm” of that somewhat wonky application of the test is basically non-existent, because the court also wiped out all of the problematic prohibitions in the original injunction, leaving only one, which it then modified to basically restate the crux of the 1st Amendment: the government should not coerce companies in their moderation practices. Which is something that I agree with, and which hopefully will teach the Biden administration to stop inching up towards the line of threats and coercion.
That said, this also seems to wholly contradict the very same 5th Circuit’s decision in the NetChoice v. Paxton case, but that’s the subject of my next post. As for this case, I guess it’s possible that either side could seek Supreme Court review. It would be stupid for the DOJ to do so, as this ruling gives them almost everything they really wanted, and the probability that the current Supreme Court could fuck this all up seems… decently high. That said, the plaintiffs might want to ask the Supreme Court to review for just this reason (though, of course, that only reinforces the idea that the headlines that claimed this ruling was a “loss” for the Biden admin are incredibly misleading).
So we wrote about Judge Terry Doughty’s somewhat questionable ruling preventing the Biden White House from communicating with tech companies or researchers regarding certain areas of disinformation. As we noted, there were some good elements in the ruling, reminding government officials of the 1st Amendment restrictions on coercion in attempting to silence protected speech.
But there were also plenty of extremely problematic elements to the ruling, including the lack of any clear standard by which the government might determine what is allowed and what is forbidden. As we noted, the injunction bars the government from talking about some things, but has exceptions for a bunch of other things. Except, it seems pretty clear that every example that Doughty cited as a problematic example could easily fit into the exceptions he outlined. And that’s a recipe for serious chilling effects on protected speech.
Even worse, we noted that Doughty literally inserted words into a quote to make it say something it never said. He flat out falsified a quote from a Stanford researcher, pretending she said they had set up the Election Integrity Partnership to “get around” the 1st Amendment, when the actual quote from her does not say anything about “getting around” the 1st Amendment, but was literally a statement of fact regarding the 1st Amendment limits on the government’s ability to do things.
Also, I had highlighted how there were emails from Rob Flaherty in the White House that I felt went too far, in angrily demanding that tech companies “explain” certain decisions they had made. At no point should a government official demand an explanation from a media organization about its editorial choices. But, as others have pointed out, the context of Flaherty’s angry email was totally misrespresented by Doughty. His demand for an explanation was not (as implied in the filings) about why certain accounts hadn’t been actioned/removed/etc. but rather about a bug in Facebook’s recommendation engine that removed the President’s account, limiting its growth.
Now… I still think that Flaherty’s email was a massive overreach. The President’s account has no inherent right to be regularly recommended by any recommendation engine, but the context here shows that it had zero to do with trying to take down or moderate accounts. In the context of the judge’s decision, you’d never know that all.
Either way, we’d already seen real world problems stemming from this decision as various government officials were cancelling important meetings with tech companies that had nothing whatsoever to do with content moderation or censorship, because of a fear that it would be seen to violate the law.
The DOJ quickly appealed the ruling, and asked Judge Doughty for a stay on the injunction until the appeal was heard. Granting such a stay is generally seen as standard practice. The plaintiffs in the case filed a brief opposing the stay, and even though the court told the plaintiffs that their filing was deficient (for a small technical reason) Judge Doughty issued his ruling rejecting the request for the stay before the plaintiffs even filed their corrected motion. You can see that the rejection is document number 301 in the docket, where the corrected opposition was document number 303, filed after the motion was already ruled on.
As with Doughty’s original ruling, the ruling rejecting the stay is filled with a lot of misleading and hyperbolic language. He insists that his ruling could not possibly cause harm, because of the exceptions he listed out (ignoring that every single example of speech he complained about easily and obviously fits into those exceptions):
The Preliminary Injunction also has several exceptions which list things that are NOT prohibited. The Preliminary Injunction allows Defendants to exercise permissible public government speech promoting government policies or views on matters of public concern, to inform social-media companies of postings involving criminal activity, criminal conspiracies, national security threats, extortion, other threats, criminal efforts to suppress voting, providing illegal campaign contributions, cyber-attacks against election infrastructure, foreign attempts to influence elections, threats against the public safety or security of the United States, postings intending to mislead voters about voting requirements, procedures, preventing or mitigating malicious cyber activity, and to inform social-media companies about speech not protected by the First Amendment.
Anyway, even the notoriously ridiculous 5th Circuit found Doughty’s move here to be a step too far, very quickly rejected his refusal to grant a stay, and did so in his stead. They also expedited the case to speed up the process.
IT IS ORDERED that this appeal is EXPEDITED to the next available Oral Argument Calendar.
IT IS FURTHER ORDERED that a temporary administrative stay is GRANTED until further orders of the court.
IT IS FURTHER ORDERED that Appellants’ opposed motion for stay pending appeal is deferred to the oral argument merits panel which receives this case.
That’s the entirety of the ruling, but basically the injunction is put on hold. For the time being, the government can again talk to social media companies and researchers. Of course, they cannot talk to them about “censorship” because that has always been barred by the 1st Amendment. At least for the time being, though, they should be free to talk to them about legitimate, non-problematic efforts towards harm reduction.
One has to think that Donald Trump judicial appointee Judge Terry Doughty deliberately waited until July 4th (when the courts are closed) to release his ruling on the requested preliminary injunction preventing the federal government from communicating with social media companies. The results of the ruling are not a huge surprise, given Doughty’s now recognized pattern of being willing to bend over backwards as a judge in support of Trumpist culture war nonsense in multiple cases in his short time on the bench. But, even so, there are some really odd things about the ruling.
As you’ll recall, Missouri and Louisiana sued the Biden administration, arguing that it had violated the 1st Amendment by having Twitter block the NY Post story about the Hunter Biden laptop. But that happened before Joe Biden took office, and it’s also completely false. While it remains a key Trumpist talking point that this happened, every bit of evidence from the Twitter Files has revealed that the government had zero communications with Twitter regarding the NY Post’s story.
Still, Doughty does what Doughty does, and in March rejected the administration’s motion to dismiss with a bonkers, conspiracy-theory laden ruling. Given that, it wasn’t surprising that he would then grant the motion for a preliminary injunction. But, even so, there are some surprising bits in there that deserve attention.
There are elements of the ruling that are good and could be useful, some that are bad, and some that are just depressingly ugly. Let’s break them down, bit by bit.
The Good
There are legitimate concerns about government intrusions into private companies and their 1st Amendment protected decisions. I still think that the best modern ruling on this is Backpage v. Dart, in which then appeals court Judge Richard Posner smacked Cook County Sheriff Thomas Dart around for his threats to credit card companies that resulted in them refusing to accept transactions for Backpage.com. There are some elements of that kind of ruling here, but the main difference was in that case, the coercive elements by Dart were clear, and here, many (but not all) are made up fantasyland stuff.
There were some examples in the lawsuit that did seem likely to cross the line, including having officials in the White House complaining about certain tweets and even saying “wondering if we can get moving on the process of having it removed ASAP.” That’s definitely inappropriate. Most of the worst emails seemed to come from one guy, Rob Flaherty, the former “Director of Digital Strategy,” who seemed to believe his job in the White House made it fine for him to be a total jackass to the companies, constantly berating them for moderation choices he disliked.
I mean, this is just totally inappropriate for a government official to say to a private company:
Things apparently became tense between the White House and Facebook after that, culminating in Flaherty’s July 15, 2021 email to Facebook, in which Flaherty stated: “Are you guys fucking serious? I want an answer on what happened here and I want it today.”
So having a ruling that highlights that the government should not be pressuring websites over speech is good to see.
Also, the ruling highlights that lawmakers threatening to revoke or modify Section 230 as part of the process of working the refs at these social media companies is a form of retaliation. This is a surprising finding, but a good one. We’ve highlighted in the past that politicians threatening to punish companies with regulatory changes in response to speech should be seen as a 1st Amendment violation, and had people yell at us (on both sides) about that. But here, Judge Doughty agrees, and highlights 230 reform as an example (though he’s a lot more credulous that 230 reform attempts between Republicans and Democrats are aligned).
With respect to 47 U.S.C. § 230, Defendants argue that there can be no coercion for threatening to revoke and/or amend Section 230 because the call to amend it has been bipartisan. However, Defendants combined their threats to amend Section 230 with the power to do so by holding a majority in both the House of Representatives and the Senate, and in holding the Presidency. They also combined their threats to amend Section 230 with emails, meetings, press conferences, and intense pressure by the White House, as well as the Surgeon General Defendants. Regardless, the fact that the threats to amend Section 230 were bipartisan makes it even more likely that Defendants had the power to amend Section 230. All that is required is that the government’s words or actions “could reasonably be interpreted as an implied threat.” Cuomo, 350 F. Supp. 3d at 114. With the Supreme Court recently making clear that Section 230 shields socialmedia platforms from legal responsibility for what their users post, Gonzalez v. Google, 143 S. Ct. 1191 (2023), Section 230 is even more valuable to these social-media platforms. These actions could reasonably be interpreted as an implied threat by the Defendants, amounting to coercion.
Cool. So, government folks, both in Congress and in the White House, should stop threatening to remove Section 230 as punishment for disagreeing with the moderation choices of private companies. That’s good and it’s nice to have that in writing, even if I’d be hard pressed to believe that most of the discussions on 230 are actual threats.
The Bad
Doughty seems incredibly willing to include perfectly reasonable conversations about how to respond to actually problematic content as “censorship” and “coercion,” despite there being little evidence of either in many cases (again, in some cases, it does appear that some folks in the administration crossed the line).
For example, it’s public information (as we’ve discussed) that various parts of the government would meet with social media not for “censorship” but to share information, such as about foreign trolls seeking to disrupt elections with false information, or about particular dangers. These meetings were not about censorship, but just making everyone aware of what was going on. But conspiracy-minded folks have turned those meetings into something they most definitely are not.
Yet Doughty assumes all these meetings are nefarious.
In doing so, Doughty often fails to distinguish perfectly reasonable speech by government actors that is not about suppressing speech, but rather debunking or countering false information — which is traditional counterspeech. Now, again, when government actors are doing it, their speech is actually less protected (Posner’s ruling in the Dart case details this point), but so long as their speech is not focused on silencing other speech, it’s perfectly reasonable. For example, the complaint detailed some efforts by social media companies to deboost the promotion of the Great Barrington Declaration. One of the points in the lawsuit was that Francis Collins had emailed Anthony Fauci about how much attention it was getting, saying “there needs to be a quick and devastating published take down of its premises.” And Fauci responded:
The same day, Dr. Fauci wrote back to Dr. Collins stating, “Francis: I am pasting in below a piece from Wired that debunks this theory. Best, Tony.”
Doughty ridiculously interprets Collins saying “there needs to be a… take down of its premises” to mean “we need to get this taken off of social media.”
However, various emails show Plaintiffs are likely to succeed on the merits through evidence that the motivation of the NIAID Defendants was a “take down” of protected free speech. Dr. Francis Collins, in an email to Dr. Fauci told Fauci there needed to be a “quick and devastating take down” of the GBD—the result was exactly that.
But that’s clearly not what Collins meant in context. By a “quick and devastating published take down” he clearly meant a response. That is: more speech, debunking the claims that Collins worried were misleading. That’s why he said a “published take down.” Note that Doughty excises “published” from his quote in order to falsely imply that Collins was telling Fauci they needed to censor information.
And then Fauci continued to talk publicly about his concerns about the GBD, not urging any kind of censorship. And Doughty repeats all of those points, and still pretends the plan was “censorship”:
Dr. Fauci and Dr. Collins followed up with a series of public media statements attacking the GBD. In a Washington Post story run on October 14, 2020, Dr. Collins described the GBD and its authors as “fringe” and “dangerous.” Dr. Fauci consulted with Dr. Collins before he talked to the Washington Post. Dr. Fauci also endorsed these comments in an email to Dr. Collins, stating “what you said was entirely correct.”
On October 15, 2020, Dr. Fauci called the GBD “nonsense” and “dangerous.” Dr. Fauci specifically stated, “Quite frankly that is nonsense, and anybody who knows anything about epidemiology will tell you that is nonsense and very dangerous.” Dr. Fauci testified “it’s possible that” he coordinated with Dr. Collins on his public statements attacking the GBD.
Social-media platforms began censoring the GBD shortly thereafter. In October 2020, Google de-boosted the search results for the GBD so that when Google users googled “Great Barrington Declaration,” they would be diverted to articles critical of the GBD, and not to the GBD itself. Reddit removed links to the GBD. YouTube updated its terms of service regarding medical “misinformation,” to prohibit content about vaccines that contradicted consensus from health authorities. Because the GBD went against a consensus from health authorities, its content was removed from YouTube. Facebook adopted the same policies on misinformation based upon public health authority recommendations. Dr. Fauci testified that he could not recall anything about his involvement in seeking to squelch the GBD
Nothing in that shows coercion. It shows Fauci expressing an opinion on the accuracy of the statements in the GBD. That social media companies later chose to remove some of those links is wholly disconnected from that.
Indeed, under this theory, if a social media company wants to get government officials in trouble, all it has to do is remove any speech that a government official tries to respond to, enabling a lawsuit to claim that it was removed because of that response. That… makes no sense at all.
I mean, the conversation about the CDC is just bizarre. Whatever you think of the CDC, the details show that social media companies chose to rely on the CDC to try to understand what was accurate and what was not regarding Covid and Covid vaccines. That’s because a ton of information was flying back and forth and lots of it was inaccurate. As social media companies were hoping for a way to understand what was legit and what was not, it’s reasonable to ask an entity like the CDC what it thought.
Much like the other Defendants, described above, the CDC Defendants became “partners” with social-media platforms, flagging and reporting statements on social media Defendants deemed false. Although the CDC Defendants did not exercise coercion to the same extent as the White House and Surgeon General Defendants, their actions still likely resulted in “significant encouragement” by the government to suppress free speech about COVID-19 vaccines and other related issues.
Various social-media platforms changed their content-moderation policies to require suppression of content that was deemed false by CDC and led to vaccine hesitancy
Yeah, the companies did this because they (correctly) figured that the CDC — whose entire role is about this very thing — is going to be better at determining what’s legit and what’s dangerous than their own content moderation team. That’s a perfectly rational decision, not “censorship”. But Doughty doesn’t care.
Similarly, regarding the Hunter Biden laptop story — which we’ve debunked multiples times here — it’s now well established that the government had no involvement in the decision by social media companies to lower the visibility of that story for a short period of time. Incredibly, Doughty argues that the real problem was that the FBI didn’t tell social media companies that their concerns were wrong. Really:
The FBI’s failure to alert social-media companies that the Hunter Biden laptop story was real, and not mere Russian disinformation, is particularly troubling. The FBI had the laptop in their possession since December 2019 and had warned social-media companies to look out for a “hack and dump” operation by the Russians prior to the 2020 election. Even after Facebook specifically asked whether the Hunter Biden laptop story was Russian disinformation, Dehmlow of the FBI refused to comment, resulting in the social-media companies’suppression of the story. As a result, millions of U.S. citizens did not hear the story prior to the November 3, 2020 election. Additionally, the FBI was included in Industry meetings and bilateral meetings, received and forwarded alleged misinformation to social-media companies, and actually mislead social-media companies in regard to the Hunter Biden laptop story. The Court finds this evidence demonstrative of significant encouragement by the FBI Defendants.
So… despite so many parts of this lawsuit complaining about the government having contacts with social media, here the court says the real problem was that the FBI should have told the companies not to moderate this particular story? So, basically “don’t communicate with social media companies, except if your communication boosts the storylines that will help Donald Trump.”
Also, the idea that what social media companies did resulted in “millions of U.S. citizens” not hearing the story prior to the election is bullshit. As we’ve covered in the past, actual analysis showed that the attempts by Facebook and Twitter to deboost that story (very briefly — only for one day in the case of Twitter) actually created a Streisand Effect that got the story more attention than it was likely to get otherwise.
Over and over again in the ruling, Doughty highlights how the social media companies often explained to White House officials that they would not remove or otherwise take action on various accounts because they did not violate policies. That is consistent with everything we’ve seen, showing that the companies did not feel coerced, and if anything, often mocked the government officials for over-reacting to things online.
Indeed, as we’ve detailed, the actual evidence shows that the companies very, very rarely did anything in response to these flags. The report from Stanford showed that they only took action on 35% of flagged content, and those numbers were skewed by TikTok being much more aggressive. So Twitter/Facebook/YouTube took action on way less than 35%. And, by “take action,” they mostly just added more context (i.e., more speech, not suppression). The only things that were removed were obviously problematic content like phishing and impersonation.
But Doughty basically ignores all that and insists there’s evidence of coercion, because some companies took action. And now he’s saying that the government basically can’t flag any of this info.
This also means that in situations where useful information sharing to prevent real harm could occur, this preliminary injunction now blocks it. And we’re already seeing some of that with the State Department canceling meetings with Facebook in response to this ruling (I’ve heard that other meetings between the government and companies have also been canceled, including ones that are deliberately focused on harm reduction, not on “censorship.”)
Again, so much of this seems to be based on a very, very broad misunderstanding of the nature of investigating the flow of mis- and disinformation online, and the role of government in dealing with that. As we’ve discussed repeatedly, much of the information sharing that was set up around these issues involved things where government involvement made total sense: helping to determine attempts to undermine elections through misinformation regarding the time and place of polling stations, phishing attempts, and other such nonsense.
But, this ruling seems to treat that kind of useful information sharing as a nefarious plan to “censor conservatives.”
The Ugly
Judge Doughty seems to believe every nonsense conspiracy around regarding the culture war and false claims of social media deliberately stifling “conservatives.” This is despite multiple studies showing that they actually bent over backwards to allow conservatives to regularly break the rules to avoid claims of bias. I mean, this is just nonsense:
What is really telling is that virtually all of the free speech suppressed was “conservative” free speech. Using the 2016 election and the COVID-19 pandemic, the Government apparently engaged in a massive effort to suppress disfavored conservative speech. The targeting of conservative speech indicates that Defendants may have engaged in “viewpoint discrimination,” to which strict scrutiny applies
First of all, this isn’t true. The court is only aware of such speech being moderated because that’s all the plaintiffs in this case highlighted (often through exaggeration). Second, many of the contested actions happened under the Trump administration, and it would make no sense that a Republican administration would be seeking to suppress “conservative” speech. Third, the whole issue is that the companies were choosing to hold back dangerous false information that they feared would lead to real world harms. If it was true that such speech came more frequently from so-called “conservatives,” that’s on them. Not the government.
And that results in the details of the injunction, which are just ridiculously broad and go way beyond reasonable limits on attempts by the government to impact social media content moderation efforts.
Again, here, Doughty twists reality by viewing it through a distorted, conspiracy-laden prism. Take, for example, the following:
According to DiResta, the EIP was designed to “get around unclear legal authorities, including very real First Amendment questions” that would arise if CISA or other government agencies were to monitor and flag information for censorship on social media.
So, this part is really problematic. DiResta DID NOT SAY that EIP was an attempt to “get around” unclear legal authorities. Her full quote does not say that at all:
So, as with pretending that Collins told Fauci they had to “take down” content, when he meant provide more info that responds to it, here Doughty has put words in DiResta’s mouth. Where she’s explaining the reasons why the government can’t be in the business of flagging content, as there are “very real First Amendment questions,” Doughty, falsely, claims she said this was an attempt to “get around” those questions. But it’s not.
This is actually showing that those involved were being careful not to violate the 1st Amendment and to be cognizant of the limits the Constitution placed on government actors. Given the “very real First Amendment questions” that would be raised by having government officials highlighting misinformation to social media companies, groups like Stanford IO could make their analysis and pass it off to social media companies without the natural concerns of that information coming from government actors. In other words, Stanford’s involvement was not as a “government proxy,” but rather to provide useful information to the companies without the problematic context of government (and, again, Stanford’s eventual report on this stuff showed that the companies took action on only a tiny percentage of flagged content, and most of those were things like phishing attempts and impersonation — not anything to do with political speech).
It’s not “getting around” anything. It’s recognizing what the government is forbidden from doing.
If you look at the full context of DiResta’s quote, she’s actually making it clear that the reason Stanford decided to set up the EIP project was because the government shouldn’t be in that business, and that it made more sense for an academic institution to be tracking and highlighting disinformation for the sake of responding to it (i.e., not suppress it, but respond to it).
Yet, Doughty goes off on some nonsense tangent, winding himself up about how this is just the tip of the iceberg of some giant censorship regime, which is just laughable:
Plaintiffs have put forth ample evidence regarding extensive federal censorship that restricts the free flow of information on social-media platforms used by millions of Missourians and Louisianians, and very substantial segments of the populations of Missouri, Louisiana, and every other State. The Complaint provides detailed accounts of how this alleged censorship harms “enormous segments of [the States’] populations.” Additionally, the fact that such extensive examples of suppression have been uncovered through limited discovery suggests that the censorship explained above could merely be a representative sample of more extensive suppressions inflicted by Defendants on countless similarly situated speakers and audiences, including audiences in Missouri and Louisiana. The examples of censorship produced thus far cut against Defendants’ characterization of Plaintiffs’ fear of imminent future harm as “entirely speculative” and their description of the Plaintiff States’ injuries as “overly broad and generalized grievance[s].” The Plaintiffs have outlined a federal regime of mass censorship, presented specific examples of how such censorship has harmed the States’ quasi-sovereign interests in protecting their residents’ freedom of expression, and demonstrated numerous injuries to significant segments of the Plaintiff States’ populations.
Basically everything in that paragraph is bullshit.
Anyway, all that brings us to the nature of the actual injunction. And… it’s crazy. It basically prevents much of the US government from talking to any social media company or to various academics and researchers studying how information flows or how foreign election interference works. Which is quite a massive restriction.
But, really, the most incredible part is that the injunction pretends that it can distinguish the kinds of information the government can share with social media companies from the kinds it can’t. So, for example, the following is prohibited:
specifically flagging content or posts on social-media platforms and/or forwarding such to social-media companies urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech;
urging, encouraging, pressuring, or inducing in any manner social-media companies to change their guidelines for removing, deleting, suppressing, or reducing content containing protected free speech;
emailing, calling, sending letters, texting, or engaging in any communication of any kind with social-media companies urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech;
But then, it says the government can communicate with social media companies over the following:
informing social-media companies of postings involving criminal activity or criminal conspiracies;
contacting and/or notifying social-media companies of national security threats, extortion, or other threats posted on its platform;
contacting and/or notifying social-media companies about criminal efforts to suppress voting, to provide illegal campaign contributions, of cyber-attacks against election infrastructure, or foreign attempts to influence elections;
informing social-media companies of threats that threaten the public safety or security of the United States;
exercising permissible public government speech promoting government policies or views on matters of public concern;
informing social-media companies of postings intending to mislead voters about voting requirements and procedures;
informing or communicating with social-media companies in an effort to detect, prevent, or mitigate malicious cyber activity;
But here’s the thing: nearly all of the examples actually discussed fall into this exact bucket, but the plaintiffs (AND JUDGE DOUGHTY) pretend they fall into the first bucket (which is now prohibited). So, is sharing details of some jackass posting fake ways to vote “informing social media companies of posting intended to mislead voters about voting requirements” or is it “specifically flagging content or posts on social-media platforms and/or forwarding such to social-media companies urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech“?
It seems abundantly clear that nearly all of the conversations were about legitimate information sharing, but nearly all of it is interpreted by the plaintiffs and the judge to be nefarious censorship. As such, the risk for anyone engaged in activities on the “not prohibited” list is that this judge will interpret them to be on the prohibited list.
And that’s why government officials are now calling off important meetings with these companies where they were sharing actual useful information that they can no longer share. I’ve even heard some government officials say they’re even afraid to post to social media out of a fear that that would violate this injunction.
Also, this is completely fucked up. Among the prohibited activities is having people in the government talk to a wide variety of researchers who aren’t even parties to this lawsuit.
collaborating, coordinating, partnering, switchboarding, and/or jointly working with the Election Integrity Partnership, the Virality Project, the Stanford Internet Observatory, or any like project or group for the purpose of urging, encouraging, pressuring, or inducing in any manner removal, deletion, suppression, or reduction of content posted with social-media companies containing protected free speech
That should be a real concern, as (again) a key thing that the EIP did was connect with election officials who were facing bogus election claims, giving them the ability to share that info and move to debunk false information and provide more accurate information. But, under this ruling, that can’t happen.
If you wanted to set up a system that is primed to enable foreign interference in elections, you couldn’t have picked a better setup. Nice work, everyone.
Anyway, it’s no surprise that the US government has already moved to appeal this ruling. But, if you think the appeals court is going to save things, remember that Louisiana federal rulings go up to the 5th Circuit, which is the court that decided that Texas’s compelled speech law was just dandy.
Of course, in many ways, this ruling conflicts with that one, in that Texas’s social media law is actually a much more active attempt by government to force social media companies to moderate in the manner it wants. But the one way they are consistent is that both rulings support Trumpist delusions, meaning there’s a decent chance the 5th Circuit blesses the nonsense parts of this one.
Again, the good parts of the ruling shouldn’t be ignored. And many government officials do need a clear reminder of the boundaries between coercion and persuasion. But, all in all, this ruling goes way too far, interprets things in a nonsense manner, and creates an impossible-to-comply-with injunction that causes real harm not just for the users of social media, but actual 1st Amendment interests as well.
Well, this is unfortunate. Back in May of last year we wrote about how Missouri and Louisiana had sued the Biden administration, claiming “censorship” over social media based on a bunch of convoluted and nonsensical claims, most of which were about events that happened during the Trump administration.
We noted that, when viewed in the most forgiving light, the best we could make of the ridiculously poorly plead account was that they were trying to make a jawboning argument, saying that some of the administrations comments (mostly about reforming or repealing Section 230) acted as a de facto threat to social media to get those companies to silence speech. As we’ve gone into great detail about before, the Biden administration has, at times, gone stupidly close to the 1st Amendment line, but we hadn’t seen how they’d gone past it. And the initial complaint was so poorly done, and so focused on being a political document (it was brought by then Missouri Attorney General Eric Schmitt, who happily used it to grandstand on his way to being elected a US Senator last year, which is his current job), that it didn’t come close to making this argument coherently.
Also, what’s weird about the argument is that Republicans over the last few years have been angrier about Section 230, and have been louder about their threats to repeal it.
Even worse, many of the examples the complaint claimed were proof of “censorship” by the Biden administration were issues like the false claims that it tried to censor the story about the Hunter Biden laptop (which even the Twitter Files confirmed was not blocked by Twitter on behalf of any request from either the government or the Biden campaign, which wasn’t even the government anyway). The complaint also talked about Twitter’s decision to block sharing regarding the (now considered more credible) “lab leak” theory, though again, that happened during the Trump administration, not the Biden one. (Update: it turns out this argument is even dumber than I thought since it was Facebook, not Twitter who banned discussions about a “lab leak” theory).
Throughout the Fall last year, then AG/Senatorial candidate Schmitt used the case to release extremely misleading and misrepresented documents to bolster the still unproven claim of the Biden administration conspiring with social media companies to silence speech. Indeed some journalists even fell for it.
Still, as more and more papers were filed in the case, which now has a docket with well over 200 entries, it meant that perhaps the states would be able to drag the case out. And… that’s exactly what’s happened.
The ruling starts out badly, and then gets progressively more unhinged, taking conspiracy theories and nonsense claims that have been rejected in basically every other court, and saying “yup, sure, that sounds reasonable.”
Much of the ruling focuses on whether or not the two states even have standing to bring these claims. The court says they do, because they have “adequately” argued “injury-in-fact.” The reasons why are, frankly, boring and not worth getting into. This is also true of a few private plaintiffs who are involved in the lawsuit: in this case some well known peddlers of misleading information who were banned from Twitter, which they insist happened because of the Biden administration.
The White House pointed out (reasonably) that those still don’t qualify for standing because Twitter’s private moderation actions are not traceable to the White House because the White House had nothing to do with them. Here, the court gets, well, stupid. The judge more or less accepts conspiracy theory nonsense that the White House pressured Twitter to silence voices:
Here, however, Plaintiffs have alleged the full picture: a cohesive and coercive campaign by the Biden Administration and all of the Agency Defendants to threaten and persuade social media companies to more avidly censor so-called “misinformation.” Thus, while the Changizi plaintiffs may have left gaps in their pleadings, Plaintiffs in the current case have not. Plaintiffs have alleged, as described in detail above, a “ramping up” in censorship that directly coincides with the deboosting, shadow-banning, and account suspensions that are the subject of the Amended Complaint. And these are not mere generalizations: Plaintiffs made specific allegations showing a link between Defendants’ statements and the social-media companies’ censorship activities. While Plaintiffs acknowledge that some censorship existed before Defendants made the statements that are the subject of this case, they also allege in detail an increase in censorship, which is tied temporally to the Defendants’ actions. Thus, Plaintiffs here provide the allegations that may have been missing in the Changizi complaint.
Further, the Defendants’ reliance on Hart v. Facebook Inc., No. 22-CV-00737-CRB, 2022 WL 1427507 (N.D. Cal. May 5, 2022), is also misplaced. As in the above cases, the plaintiffs in Hart sought redress for censorship of their viewpoints on social-media platforms like Twitter and Facebook. However, the Hart court found that the plaintiff’s allegations were simply too “vague” and “implausible” to fairly connect the government officials to the actions of the social-media companies. Id. at 5. But as this Court has repeatedly noted, Plaintiffs’ Amended Complaint simply cannot be characterized as “vague.” Instead, Plaintiffs have carefully laid out the alleged scheme of censorship and how Defendants are specifically connected to and involved with it.
This reads like motivated reasoning by a judge very, very interested in justifying a result rather than showing any actual coercion.
Having said that the plaintiffs have standing, the court moves on to the 1st Amendment claims, and in a move not surprising given what’s said above, suggests that they’re legit. But does so in a weird way. After first running through the various precedents regarding jawboning, including the very recent 9th Circuit ruling that said government flagging content to Twitter is not coercive, Judge Doughty says the Biden administration’s public statements, which included no actual threats or hints at threats, were coercive!
Here, Plaintiffs have clearly alleged that Defendants attempted to convince social-media companies to censor certain viewpoints. For example, Plaintiffs allege that Psaki demanded the censorship of the “Disinformation Dozen” and publicly demanded faster censorship of “harmful posts” on Facebook. Further, the Complaint alleges threats, some thinly veiled and some blatant, made by Defendants in an attempt to effectuate its censorship program. One such alleged threat is that the Surgeon General issued a formal “Request for Information” to social-media platforms as an implied threat of future regulation to pressure them to increase censorship. Another alleged threat is the DHS’s publishing of repeated terrorism advisory bulletins indicating that “misinformation” and “disinformation” on social-media platforms are “domestic terror threats.” While not a direct threat, equating failure to comply with censorship demands as enabling acts of domestic terrorism through repeated official advisory bulletins is certainly an action social-media companies would not lightly disregard. Moreover, the Complaint contains over 100 paragraphs of allegations detailing “significant encouragement” in private (i.e., “covert”) communications between Defendants and social-media platforms.
The Complaint further alleges threats that far exceed, in both number and coercive power, the threats at issue in the above-mentioned cases. Specifically, Plaintiffs allege and link threats of official government action in the form of threats of antitrust legislation and/or enforcement and calls to amend or repeal Section 230 of the CDA with calls for more aggressive censorship and suppression of speakers and viewpoints that government officials disfavor. The Complaint even alleges, almost directly on point with the threats in Carlin and Backpage, that President Biden threatened civil liability and criminal prosecution against Mark Zuckerburg if Facebook did not increase censorship of political speech. The Court finds that the Complaint alleges significant encouragement and coercion that converts the otherwise private conduct of censorship on social media platforms into state action, and is unpersuaded by Defendants’ arguments to the contrary.
Again, at the time we noted that much of what the administration said was stupid, and they should stop their jawboning. But Judge Doughty’s reading of it as coercive seems… bizarrely wrong. I mean, if that’s accurate, then how do we judge Donald Trump’s much more aggressive threats to repeal Section 230 if social media websites didn’t moderate the way he wanted to?
The Biden Administration notes that none of their public statements about disinformation included anything anywhere near a threat, but the judge doesn’t care.
Defendants argue that Plaintiffs allege only “isolated episodes in which federal officials engaged in rhetoric about misinformation on social media platforms” and that the Complaint is “devoid” of any “enforceable threat” to “prosecute.” Further, they argue that it “is unclear how the alleged comments about amending [Section 230 of the CDA] or bringing antitrust suits could be viewed as ‘threats’ given that no Defendant could unilaterally take such actions.” The Court is unpersuaded by these arguments for several reasons. First, as explained above, any suggestion that a threat must be enforceable in order to constitute coercive state action is clearly contradicted by the overwhelming weight of authority. Moreover, the Complaint alleges that the threats became more forceful once the Biden Administrative took office and gained control of both Houses of Congress, indicating that the Defendants could take such actions with the help of political allies in Congress. Additionally, the Attorney General, a position appointed by and removable by the President, could, through the DOJ, unilaterally institute antitrust actions against social-media companies.
Again, this seems almost certainly backwards as a matter of precedent. And, if it’s accurate, I can’t wait to see how these same courts judge cases in the next GOP administration that will almost certainly go much, much further.
The ruling then gets even dumber. Despite every other court laughing away any claim that seeks to make social media companies like Twitter “state actors,” here the Court says that in this case, there is “joint action” that makes them state actors. This is again, simply wrong. It’s backwards. It’s silly. Again, the judge points to the recent 9th Circuit case that gets it right, and says “but this is different because I say so.”
Recently, in O’Handley, the United States Court of Appeals for the Ninth Circuit found no joint action where government officials flagged certain tweets as misinformation. There, the plaintiff alleged the “conspiracy approach” to joint action which requires “the plaintiff to show a ‘meeting of the minds’ between the government and the private party to ‘violate constitutional rights.’” 2023 WL 2443073, at *7 (quoting Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983)). The court noted that, because the “only alleged interactions are communications between the OEC and Twitter in which the OEC flagged for Twitter’s review posts that potentially violated the company’s content-moderation policy,” the plaintiff “allege[d] no facts plausibly suggesting either that the OEC interjected itself into the company’s internal decisions to limit access to his tweets and suspend his account or that the State played any role in drafting Twitter’s Civic Integrity Policy.” Id. at *8. The court described the relationship between the state officials and Twitter as a permissible “arms-length” relationship. Id. at *8 (citing Mathis v. Pac. Gas & Elec. Co., 75 F.3d 498 (9th Cir. 1996)). For the reasons explained below, the allegations here are distinguishable from those in O’Handley.
Here, Plaintiffs have plausibly alleged joint action, entwinement, and/or that specific features of Defendants’ actions combined to create state action. For example, the Complaint alleges that “[o]nce in control of the Executive Branch, Defendants promptly capitalized on these threats by pressuring, cajoling, and openly colluding with social-media companies to actively suppress particular disfavored speakers and viewpoints on social media.” Specifically, Plaintiffs allege that Dr. Fauci, other CDC officials, officials of the Census Bureau, CISA, officials at HHS, the state department, and members of the FBI actively and directly coordinated with social-media companies to push, flag, and encourage censorship of posts the Government deemed “Mis, Dis, or Malinformation.”
These allegations, unlike those in O’Handley, demonstrate more than an “arms-length” relationship. Plaintiffs allege a formal government-created system for federal officials to influence social-media censorship decisions. For example, the Complaint alleges that federal officials set up a long series of formal meetings to discuss censorship, setting up privileged reporting channels to demand censorship, and funding and establishing federal-private partnership to procure censorship of disfavored viewpoints. The Complaint clearly alleges that Defendants specifically authorized and approved the actions of the social-media companies and gives dozens of examples where Defendants dictated specific censorship decisions to social-media platforms. These allegations are a far cry from the complained-of action in O’Handley: a single message from an unidentified member of a state agency to Twitter.
I mean, basically all of that is wrong. The discussions were not coordinating “censorship.” But, among the crowd of fools that are pushing this nonsense, it’s now taken as fact. Gullible fools suckered in by their own disinformation.
There’s also a lot of complete nonsense about Section 230 in the ruling, including this:
Plaintiffs’ injuries could be redressed by enjoining Defendants from engaging in the above-discussed “other factors” that have twisted Section 230 into a catalyst for government-sponsored censorship
But that makes a huge false assumption that Section 230 has been “a catalyst for government-sponsored censorship,” which remains not shown anywhere.
The judge also makes a hop, skip, and logical mental leap, to claim that because Twitter (a private company) engaged its own private property rights to remove certain content that it felt violated its rules… this is prior restraint:
Because Plaintiffs allege that Defendants are targeting particular views taken by speakers on a specific subject, they have alleged a clear violation of the First Amendment, i.e., viewpoint discrimination. Moreover, Plaintiffs allege that Defendants, by placing bans, shadow-bans, and other forms of restrictions on Plaintiffs’ social-media accounts, are engaged in de facto prior restraints, another clear violation of the First Amendment. Thus, the Court finds that Plaintiffs have plausibly alleged their First Amendment claims.
I mean, under this kind of ruling, any government would have massive, unchecked power to force any private property owner to host any speech they want, by publicly complaining about the content, because according to this judge, at that point, if the website chooses to moderate that speech, it must be because of state action.
That’s ridiculous.
The only part of the motion to dismiss that’s granted is a very narrow part requesting an injunction directly against President Biden. But everything else targeting the administration is allowed to stand. Of course, any appeal out of this court will go up to the 5th Circuit, which is somewhat famous for its motivated reasoning in cases like these. So there’s a decent chance this ruling stands.
Again, the White House never should have said what it said and shouldn’t have even suggested it was telling social media companies how to moderate. And I’m now doubly furious because if they’d just shut the fuck up, we wouldn’t have this terrible ruling on the books. But, now we do.
Of course, it’ll be fun when there’s another Trump or DeSantis administration and they find out they’re bound by the same rules, and merely commenting on content moderation choices is seen as coercive…
