Breaking News: The Fifth Circuit Stops the Biden v. Missouri Injunction

Breaking News: The Fifth Circuit Stops the Biden v. Missouri Injunction

Unless you’re living under a rock, you know that a Louisiana federal judge had issued a preliminary injunction barring many, many federal government officials from asking politely (threatening) social media companies to remove content which the government thinks is dangerous.

Here is the judge’s opinion.


Some people (myself included) consider this to be more dangerous than the content the government seeks to remove. Something about letting people make their own decisions about truth vs. falsehood which has been kicking around in the courts for at least 75 years, (but more about that in another forum).

I thought it had some great language and analysis. I was alittle concerned that it could be viewed as was alittle vague and unmanagable in terms of what could and could not be communicated.
That’s one of the reasons I did not post about it. (The other being that, up until last night, I’ve been up to my eyeballs working on papers in the Eggleston case involving professional speech, so now that I’ve freed up a bit, and the decision just came down, I figured it was a good time to start posting again about my new favorite subject, free speech).

The Fifth Circuit’s stay was delievered via a short per curium opinion, i.e. three judges panel but an unsigned opinion. Two dems and on Trump appointed judge. But the Trump appointee signed off on it. These kinds of emergency motions are typically heard by a motions panel which is not necessarily the panel of the judges who will hear the expeditated appeal. The Fifth is a very conservative court and pretty anti Biden and Democrat, so I wouldn’t expect the actual appeals panel to have two Dem appointed judges on it. My prediction is that this case will end up on the Supreme Court’s shadow docket, later but but I think much, much sooner, like in the next couple of weeks.

There is no point jacking around in the Fifth in a case as important as this is for the country. So the actual and obvious play for the plaintiffs is to move in the Supremes to stay the stay. Dollars to donuts, they are already working on the papers. So, things are going to happen fast.

Bobby K gets into the mix

There are actually two related Biden cases. FYI, Bobby Kennedy had sued Facebook for violating his First Amendment rights and predicated the case on the Government’s threats to remove social media’s Section 230 immunity from lawsuits unless they removed him and others with the same content questioning aspects of the Covid narrative. That case didn’t work out (so far).

A couple months ago, he tried to intervene as a party in Biden v. Missouri, but that motion was basically denied. Not to be thwarted, he then filed his own lawsuit against Biden in the same district (there is only one federal judge in that Louisiana division I think), so he got the judge hearing the Biden case. He then moved to consolidate the cases, but the judge delayed deciding the motion until after he ruled on the preliminary injunction. As that has happened, the parties are now briefing consolidation.

Super interestingly, although Bobby’s case was technically not part of the preliminary injunction motion, the judge specifically cited the government censorship efforts against Bobby. So clearly, Bobby’s papers had an impact on the judge.

I an sure Bobby’s attorney’s are figuring out a way to keep him in the conversation at the Supremes as a result of the Fifth’s stay. (and if not, time’s awasting.)

I don’t think it is going to take too long to see the first steps. A week or ten days at the most.

It’s going to be an interesting late July.

Rick Jaffe, Esq.

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