A Judicial Fastball: The Supremes Hit a Long Pause on the Missouri v. Biden First Amendment Preliminary Injunction

A Judicial Fastball: The Supremes Hit a Long Pause on the Missouri v. Biden First Amendment Preliminary Injunction

No surprise here: The Supremes Stay Enforcement of the Biden v Missouri First Amendment Preliminary Injunction and take the case.

In an unsigned order delivered yesterday, the Supreme Court placed a hold on the enforcement of the preliminary injunction—a decree dispatched by the Western District of Louisiana and later upheld, albeit with restrictions, by the Fifth Circuit in Missouri v. Biden.

As you might recollect, this injunction threw a monkey wrench into the federal machinery, preventing various executive branch agencies from threatening (with a friendly smile) social media companies into expunging content that veered from the government’s Covid narrative (every booster, no off-label treatment, and anyone who says differently is a public menace who must be silenced). For a stroll down recent memory lane, here is my post about those decisions.


The Supremes with a flourish of its judicial cape, transformed the stay papers into a petition for certiorari, which it graciously granted. This is turbocharged justice!

The plot thickened when the three staunch conservatives (and the three most robust First Amendment guardians) penned a dissent against the grant of the stay. This dissent, a literary appetizer, hints at the potential narrative in their future plurality/concurring opinions—if two of the three centrist right-wing judges concur that the government overstepped its bounds—or in the dissent, if two of the middle three join forces with the left, who will surely argue that the government’s role in shielding the public extends to coaxing or outright intimidating social media moguls to toe the line with the Covid-19 government agenda (an agenda seemingly marching towards annual Covid jabs). Here is the dissent authored by Justice Alito. certgranted.

With the stay of the preliminary injunction now in effect, the judicial gears will likely slow the case down, with a decision arriving around June 2024. Yet, in this grand theater of law, a surprise act may yet emerge to steal the spotlight. We shall see.

Rick Jaffe, Esq.

Post Script:
I would submit that the world is different from when this case was litigated below. Hate speech and intimidation are front and center. Hopefully, the litigants seeking to uphold the injunction will understand that. It might suggest a more narrow approach, make distinctions which might not have been previously necessary to garner the middle three.

For those attending CHD’s conference in Savannah in early November, this jurisprudential narrowing is something I hope to explore in my talk on the legal panel on Sunday November 5th at 1:30PM. So, if you are in the neighborhood, stop by, listen and contribute to the discourse. Hear is the info. https://childrenshealthdefense.org/chd-2023-conference/


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