WARM OFF THE PRESS: The Fifth Circuit affirms (in part) the Louisiana judge’s preliminary injunction stopping Biden government officials from interfering with the First Amendment rights of government officials and some private citizens from speaking out against the mainstream Covid narrative. (Well sort of, but not quite exactly.)

The even better part is that the 5th agreed with the district court that the Biden administration likely violated the First Amendment rights of the state officials and private parties. And that my friends is a very good finding.

Here is the 74-page decision:
Doc-238-1-Fifth-Circuit-Opinion_230909_095457 (1)

Frankly, with all the pages of discussion about the difference between the government’s proper interacting with social media and the different ways it could cross the line to interference and censorship, it was a little mind-numbing. Two passes at the decision just did not do it for me.

So, what did it do? Here is the final and operative part of the decision:

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.

But alas, here is what is also did:

“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.”

Prior to this decision the lower court’s preliminary injunction had been administratively stayed by the 5th, and it is still stayed for the next 10 days.

Let us go deeper into the relief that it almost/might soon happen.

First, the court vacated all but one of the lower court’s specific prohibitions (some were duplicative).
It affirmed prohibition number six, but modified it to read:

“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.”

Here is what the court said right after the above to explain what it meant:

“Under the modified injunction, the enjoined Defendants cannot
coerce or significantly encourage a platform’s content-moderation decisions.
Such conduct includes threats of adverse consequences—even if those
threats are not verbalized and never materialize—so long as a reasonable
person would construe a government’s message as alluding to some form of
punishment. That, of course, is informed by context (e.g., persistent
pressure, perceived or actual ability to make good on a threat). The
government cannot subject the platforms to legal, regulatory, or economic
consequences (beyond reputational harms) if they do not comply with a given
request. See Bantam Books, 372 U.S. at 68; Okwedy, 333 F.3d at 344. The
enjoined Defendants also cannot supervise a platform’s content moderation
decisions or directly involve themselves in the decision itself. Social-media
platforms’ content-moderation decisions must be theirs and theirs alone. See
Blum, 457 U.S. at 1008. This approach captures illicit conduct, regardless of
its form.”

Does the explanation help?

Ok, I get that the government cannot “significantly encourage a platform’s content moderation decision”, but by implication, it can do some quiet insignificant encouragement.
Is it like Potter Stewart comment about how the courts define obscenity? We know it when we see it? Or maybe they must speak quietly or use semantically appropriate terminology, and certainly avoid the command tense. Is this just about turning government officials into verbal stunt pilots? (Salanger, J.D. Franney and Zooey, if memory serves me.)

And from which side of the communication is the significant encouragement to be viewed? (Maybe neither since it is the mythical but legally ubiquitious reasonable man standard). That raises the biggest issue:

Imagine this call:

“Hi Mr. Meta employee, I’m from the FBI and I’d like to have a friendly conversation with you about how your company is killing tens of thousands of people by allowing what we consider to be (at any given time, and we might change our minds tomorrow) Covid misinformation. Here are the 2, 5, or 50,000 posts you should remove/consider remove/entertain considering removing. But you should only remove these posts if you feel like it, because of course I am not telling you to remove anything or do anything. In fact, you should consider this to be a non-telephone call without any purpose or significance whatsoever. And hey, since we are already not talking about what posts you should decide on your own to remove , let me also share with you who the FBI thinks are the 2, 5, or 500 people you should ban, if it is not too much trouble, and if you might have thought about removing them anyway either before or after this legally insignificant call. But rest assured that we at the FBI, the nation’s largest and most effective criminal law enforcement agency that puts people in jail for decades, (and BTW, it’s not true that we can indict any ham sandwich; we don’t do prosciutto), have no intention of stopping you or threatening you with any government action for your mass murder of innocent Americans.

Do you have any questions? Well that’s great. So maybe, if you’re not too busy, we can we chat again in a couple of days (or after you return from your nervous breakdown/or you can advise your successor (after you quit) that I’ll be phoning him) for another mutually beneficial, non-threatening discussion?”

(The same would more or less apply to calls from the White House or the CDC, (but maybe not to the Surgeon General’s Office, because who cares what they say.)

Are you getting that I think these calls are per se intimidating, at least from the recipient’s point of view, and that the asserted difference between coercion and friendly calls is very dubious despite all the erudiate and nuanced discussion in the opinion.

But the main problem for me is that I think this “cannot significantly encourage” is flat-out unworkable as a legal guidance principle to the hundreds of federal employees who could encounter the social media companies. Good luck to the lawyers who have to create the guidelines. Sometimes you need bright lines, and I think this is one of those times.

What should the bright line be? In the case of Covid or public health, how about KEEP YOUR G-D HANDS OFF! The government does not get to tell social media companies which posts they should remove or think about removing, or which people should be silenced. That is about as simple and clear as it gets.

So what’s Next?

This is a very important case, and from the Government’s point of view, the preliminary injunction dramatically affects its ability to protect the public (however misguided that may be IMO). The Fifth recognized the importance, and that it is just a waystation as the case proceeds to the Supremes, which is why it granted the 10 days stay. So, despite the wonderfulness of the language in the opinion, the preliminary injunction is still not in place.

Of course, the Government is going to appeal and move for a stay. The justice assigned to the 5th is Alito. Because of the importance of the case, he might well issue a stay, or the full court could. I think it is possible that the three uber conservative judges might agree with me that a bright-line prohibition, at least in the public health Covid context, is justified, and maybe more justices.

The Three liberal justices will surely agree to take the case to continue the stay of the injunction. They surely think that it is a good thing that the government can significantly affect content moderation policies because it is the government’s job to protect the public as it sees fit, because they are just judges not public health experts. And besides, what about the holy of holies, the ever-present and cited even when not applicable, JACOBSON V. MASS?

It just does not feel right that the government has the power to question specific content on private social media companies’ platforms about Covid, (given its poor track which even the mainstream is slowly starting to acknowledge) whether via direct command or gentle whisper in the ear. I’m guessing that even a couple of the Supremes might agree. We shall see.

Finally, hats off to the attorneys and plaintiffs protecting our rights. A job well done, but you are not done yet.

In justice (and some sarcasm)

Rick Jaffe, Esq.