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Three judges dissent from grant of a stay of district court injunction pending Supreme Court’s decision on the merits in Missouri v. Biden.

Missouri v. Biden, 20A243. Order on application for stay, October 20, 2023.

Justices Alito, Gorsuch, and Thomas dissent to suspension of the effect of the injunction Issued by the trial court without full review of the record, which may not happen until late spring 2024. 

“Government censorship of private speech is antithetical to our democratic form of government and therefore today’s decision is highly disturbing.” Dissent, slip op. at 2.

There is no demonstration that there will be irreparable harm to the federal government if a stay is not granted, the dissent observes. The government offers hypotheticals but speculation cannot establish irreparable harm.  Even if speculation could establish irreparable harm, the hypotheticals would not be prohibited by the injunction.  The president is not bound;officials may speak. The injunction runs only to coercion and control of the tech platforms.

There has been no proof of irreparable harm, but the majority stays the injunction, which allows the conduct complained of and found likely to violate the First Amendment to continue. The lower court made detailed findings of fact not to be overturned lightly, but the majority has suspended relief provided below without a word of explanation. 

Should circumstances warrant.  The dissenting judges would deny the proffered application for a stay, but permit application in due course of the proceedings if needed.

Order 10/20/23

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Certiorari Granted in Case Challenging Executive Branch Involvement in Social Media Platform Policies

Missouri v. Biden, No. 23A243. Certiorari Granted October 20, 2023.

The Supreme Court today decided to proceed to the merits of this challenge to perceived government interference in online media platforms’ policies and practices during the Covid-19 pandemic. Several physicians and states, on their own behalf and for their citizens, allege that the government pressured media platforms to remove posts or accounts in violation of the First Amendment.

The injunction entered July 4, 2023 forbidding further government involvement will remain in effect until the case is decided.

The Court will address whether:. 1 the individual and state parties have standing to pursue redress; 2. whether the government’s actions transformed private social media companies content-moderation decisions into state actions, violating the private and state parties’ First Amendment rights; and 3. whether the terms and breadth of the injunction are proper.

No scheduling order has been issued as yet.

The Missouri v. Biden case is of enormous consequence concerning government involvement — some argue coercion or compulsion — in private entities management of speech decisions.

Of similar, if not equal, importance, are the two cases for which certiorari has been granted concerning state law regulation of online media platforms. In NetChoice v. Moody, No. 22-555 and Moody v. NetChoice, 22-277, the Supreme Court will consider whether states may intervene in private entities content determinations without violating the private entities’ First Amendment rights.

The Supreme Court will decide whether state law content moderation regulations comport with the First Amendment, and whether a requirement that individualized reasons for decisions be disclosed comports with the First Amendment.

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Certiorari Denied in Challenge to First Amendment Exclusion from North Carolina Statute Providing Action for Trespass against Employee “Newsgathering”

North Carolina Farm Bureau Federation, Inc. v. People for the Ethical Treatment of Animals, Inc., et al., No. 22-1148; Attorney General of North Carolina v. People for the Ethical Treatment of Animals, No. 22-1150.  Certiorari denied October 16, 2023.

Ostensibly in an effort to aid employers whose employees engage as “double agents” for the employer and for an advocacy group, North Carolina enacted a statute that would permit employers to bring actions for trespass against employees who use employer premises to facilitate surreptitious recordings to be used by advocates or others. 

The costs of an individual’s — or even an entity’s — defense to a tort action could very well be prohibitive, making it likely that no stealth activity by employees would occur.  

More importantly, the Fourth Circuit has concluded that the employee activity in these cases was ‘newsgathering’  protected by the First Amendment, making applications of the North Carolina statute to employees involved in such activities unconstitutional.  

As certiorari has been denied, the Fourth Circuit’s decision stands.  

PETA v NC Farm Bureau Fed’n 60, F4th 815 4th Cir 2023

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Another Day, Another Stay: Justice Alito Orders Administrative Stay until October 20th of July 4th Order Enjoining Federal Government from Interference with Social Media Platforms

Murthry, Surgeon General, et al. v. Missouri, et al., No. 23A243.

This case presents a sweeping challenge by private citizens and state governments to federal officials’ alleged interference with social media platforms policy and moderation decisions during the Covid-19 pandemic.

The U.S. District Court for the Western District of Louisiana, having perceived some federal activity likely to violate the First Amendment enjoined federal officials from interference with social media platforms on July 4, 2023.

On appeal, federal officials were not pleased with the Fifth Circuit’s review, which clarified but affirmed significant aspects of the trial court’s determination.  Federal officials  sought immediate relief from the U.S. Supreme Court.

Government officials were further displeased with the results of the Fifth Circuit’s further review, which added back into the injunction another defendant, the Cybersecurity and Infrastructure Security Agency.  The Fifth Circuit found that CISA pressured the platforms into adopting CISA’s proposed practices for addressing mis, dis, and malinformation.

On October 3rd, the Fifth Circuit revised its opinion and entered a ten day stay, which would expire of its own accord today.  Justice Alito has today stayed the July 4th Order until next Friday, October 20th.

What will happen on the 20th is beyond justlawful’s powers of prognostication.  If there were a preference, which there is not, in light of the recent grants of certiorari in cases concerning First Amendment issues in state intervention on social media platforms’ moderation practices, justlawful would want certiorari to be granted in this case.

Granting certiorari now would dispense with further rounds solely respecting injunctive relief and permit the Supreme Court to locate in this term a comprehensive review of First Amendment issues as they may arise between governments, social media platforms, and content providers.

An incrementalist court might not be inclined toward a global view of such significant questions.  Yet with so many questions being raised about speech suppression and moderation — including a recent European Union directive to X — such clarity and certainty as may be had could be of assistance to all of the parties in planning their affairs.

Miscellaneous Order (10_13_2023)

Recent filings with the Supreme Court

23A243 Murthy v. Missouri Government’s Third Supplemental Memorandum

Murthy v. Missouri – Response to Government’s Third Supplemental Brief

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Room for One More: 5th Circuit Reverses Earlier Opinion, Adding CISA to Federal Entities to be Enjoined from Interfering with Social Media Platforms

Missouri v. Biden, No. 23-203445 (5th Cir.) Order entered October 3, 2023. Correspondence directed to U.S. Supreme Court, October 3, 2023.

Recently the Solicitor General asked the U.S. Supreme Court to continue in effect its stay of lower courts’ activities while the Biden Administration’s Petition for Emergency Relief or for Certiorari. The government rationalized that with the likelihood of additional litigation in the offing, maintaining a stay in place would save the government time and effort.

The Supreme Court has not adopted the Solicitor General’s “just in case” suggestion. The administrative stay entered earlier has lapsed of its own accord.

In the interim, the Fifth Circuit granted a petition for rehearing, then withdrew that grant, then, upon receipt of the government’s opposition to rehearing, which for no stated reason was neither filed nor considered earlier, again granted rehearing.

Upon rehearing, the Fifth Circuit reversed its position about the likelihood that the Cybersecurity and Infrastructure Security Agency, finding it appropriate to enjoin that entity. Although the U.S.D.C. enjoined CISA in its July 4th Order, the Fifth Circuit initially saw CISA rather innocuously flagging and shepherding to the social media platforms content that might be questionable with respect to Covid-19.

Where CISA was, in its interactions with and requests made to the media platforms, persuasive but not controlling, the injunctive relief ordered by the federal district court was in error.

On further review, the Fifth Circuit has concluded that CISA did much more than act as a conduit or “switchboard” for referrals of pandemic critical information from concerned entities to social media platforms.

CISA, the Fifth Circuit has now concluded, told the social media platforms what information was true or false and pushed for more restrictive social media policies.

This much crossed the line into significantly encouraging interfering with speech, the Fifth Circuit now concludes, which requires that its earlier opinion be withdrawn, its new opinions substituted, and the July 4, 2023 order of the federal trial court remain intact as to CISA.

The Fifth Circuit has advised the Supreme Court of its re-determination. The effect of the order is stayed for ten days, which will, it can be surmised, allow time for the government to revive or refile its petition for relief with the Supreme Court.

Missouri v Biden 23-30445 5th Cir Oct 03 2023

2023-10-03 – Letter to U.S. Supreme Court re Panel Rehearing in Fifth Circuit

 

 

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Big Huddle: Supreme Court to Consider Multiple First Amendment Certiorari Petitions at September 26 “Long Conference”

Supreme Court justices will confer on Tuesday, September 26, to consider whether to hear several cases, some of which seek to test the limits of state powers versus First Amendment guarantees.

Among other matters, these cases present questions concerning:

What constitutional protections attach to investigative reporting?

Should criminal defamation statutes be abolished?

How far may a state regulator may go in exerting pressure to sever associations?

May states may compel social media providers to carry content against their wishes, and compel the social media entities to report to the state on its internal activities?

Can a state may enact a special trespass action that could inhibit investigative reporting?

Is it permissible for a state to forbid psychotherapists from discussing certain sexual therapies while permitting discussion of sexual identity?

Center for Medical Progress, et al.  v. Planned Parenthood Federation of America, No. 22-1168.

Petitioners surreptitiously insinuated themselves into Planned Parenthood sites and meetings, where they recorded discussions of abortion practices.  The publication of those recordings provoked public controversy.

Planned Parenthood succeeded in obtaining a judgment for $2,000,000 in ‘economic’ damages and $14,000,000 in attorneys’ fees.  These ‘economic damages’ related to the costs of securing properties and computing systems, both, purportedly unrelated to publication, which would have been protected by the First Amendment.  The Ninth Circuit affirmed.

Petitioners seek Supreme Court review because they perceive that the “economic” damages are simply an end-run around First Amendment protections. 

The parties ask whether the First Amendment shields investigative reporters against tort claims for non-publication damages.  

Petitioners seek Supreme Court review because, while the Ninth Circuit has held that claims for non-reputational economic damages or generally applicable laws are not protected by the First Amendment, other circuits have reached contrary conclusions.  

Planned Parenthood argues that investigative reporters must respond in damages where they gained access to properties and practices by subterfuge. Respondents see no reason why the investigators should not answer to laws of general applicability. 

Amicus Foundation for Moral Law submits that speech and press freedoms are bestowed by divine providence, existing beyond the U.S. Constitution.  This group vehemently condemns Planned Parenthood’s activities and assert that equity would not permit them to benefit from their wrongdoing.  Failure to recognize petitioners’ activities as shielded by the First Amendment will inhibit undercover investigation everywhere, to the injury and damage not only of those who speak or publish, but also to those who would otherwise be unaware of the true nature of the activities reported.  

Amici speech advocates– a somewhat motley crew — have joined forces to urge the Supreme Court to grant certiorari, asserting that to fail to do so would leave in doubt significant contours of First Amendment jurisprudence to the detriment of all as speech will be suppressed.  Amici decry the notion that constitutional guarantees may be circumvented by recasting speech and publication harms as “economic” damages.  Amci point to the historic significance of surreptitious resource and immersion reporting to the nation’s laws and history, citing the works of Upton Sinclair and the pseudonymous “Nelly Bly.”

Amici note that the recharacterization of constitutionally protected speech as economic activity would allow wrongdoers to profit from their wrongdoing through suits against those who disclose what they have done.  This would be, they submit, a perverse result which would cause investigative reporting to grind to a halt. 

The Ethics and Public Policy Center as amicus not only supports petitioners in seeking review, but comments that deep national divisions concerning abortion threaten the integrity of the rule of law. “Carve outs” excepting some activities from First Amendment protections by recasting a cause of action as related to economic and not speech would only enhance the poor results which have flowed from contortions aimed at protecting — or removing — abortion interests.

Pro-life amici join in petitioners’ search for review, asserting that awarding “economic” damages would chill speech, an intolerable result. 

Frese v. Attorney General of New Hampshire, No. 22-939.

Petitioner Frese has from time to time given public voice to his opinions, an activity which, in this case, resulted in arrest for criminal defamation.  Frese had posted a comment in a local newspaper characterizing the retiring chief of police, the complainant in the case, as “dirty.”

Misdemeanor proceedings, in which no attorney was provided for Frese, could have resulted in Frese being incarcerated, as he was at large “on good behavior” related to a suspended sentence, which would end if Frese were found liable for criminal defamation.

The New Hampshire Department of Civil Rights intervened in the criminal matter, offering that there was not enough evidence to convict Frese of criminal defamation.  

With criminal charges dismissed, Frese challenged the constitutionality of the criminal defamation statute. Frese was unsuccessful on the facial challenge to the statute but his as-applied challenge survived, as the court found that the breadth of the statute and the wide discretion vested in the prosecution, who in Frese’s case was also the person allegedly defamed, made for vagaries so marked that a Fourteenth Amendment due process violation supporting Frese’s action under 42 U.S.C. Section 1983 could be stated.  

Frese argues that the criminal defamation statute is facially unconstitutional as it sweeps within its reach criticism of public officials, which is speech protected by the First Amendment.

Petitioner’s case was dismissed, a result affirmed by the U.S. Court of Appeals for the First Circuit.

A concurring judge of the First Circuit nonetheless voiced her worry about the lingering presence of criminal defamation statutes, as those laws, legacies of bad legal history, cannot be squared with the “democratic ideals” of the United States.  Where the prosecutor and the defamed are one and the same, and where there exist no discernible boundaries between gossip and loose talk and criminal defamation, opportunities for mischief abound.

Free speech advocates, as amici, support Frese in his efforts, arguing that the very threat of prosecution, particularly where speech otherwise protected by the First Amendment is concerned, chills speech. Amici note that there is a disturbing trend which finds politicians punishing enemies with criminal defamation charges to silence them.  

The State of New Hampshire opposes certiorari, asserting that there is no conflict among federal or state supreme courts which would support assumption of jurisdiction. Moreover, the expansive relief requested by Frese – doing away with criminal defamation statutes altogether – is far too sweeping to address within the narrow facts and circumstances of this case. 

The state scoffs at Frese’s vagueness complaints, stating that where a person of ordinary intelligence is capable of discerning  that the New Hampshire statute addresses false statements willfully and knowingly made, not simply speaking publicly.  Moreover, the identity of the enforcer has no bearing on whether the statute is unconstitutionally vague.    

National Rifle Association v. Vullo, Individually and as Superintendent of the New York State Department of Financial Services. No. 22-842.

The National Rifle Association (NRA)  asks the Supreme Court to hold that a state official may not interfere with the NRA’s associational rights by intimating that financial institutions will face adverse regulatory action if the financial association persists in affiliating with the NRA. 

The  Second Circuit Court of Appeals found the former superintendent to be entitled to assert qualified immunity from suit, as the superintendent may make public statements about what might happen if the financial institutions were to continue to engage with the NRA.  Moreover, the NRA could not point to a specific First Amendment violation that would support its 42 U.S.C. Section 1983 action.

Multiple amici urge the Court to recognize that threats need not be explicit to be unlawfully coercive.  A financial institution’s conclusion that sanctions would ensue if non-binding “guidance” was disregarded is not the stuff of fantasy.  

State officials ought not be able to elide responsibility simply because their prose might be sophisticated:  the substantial threat of regulatory punishment for associating with the NRA can and must be seen as a violation of the First Amendment.  

In passing, the Goldwater Institute noted that no one failed to understand what King Henry II meant when he wished aloud to be free of a noisome archbishop.  

Several states as amici urge the Court to review the case for, they assert, if state officials are permitted to strong arm those they regulate without constitutional constraints, the harm to those involved and the the public would be intolerable.  No one wants to fear or to face punishment for making choices and forming associations that a regulatory body might disdain for its own political ends.   

Net Choice v. Moody, No. 22-393; Moody v. Net Choice, No. 22-277. 

These cases ask the Court to determine whether by legislative action states may compel disclosure of the inner workings of social media platforms, and whether a state may compel a social media platform, a private entity, to publish content the social media company deems anathema. 

Stein v. People for the Ethical Treatment of Animals, No. 22-1150. 

North Carolina has created a tort action that would allow employers to recover from employees who record information in non-public areas of the employer[‘s property and then publish the information.  The statute seeks to permit recovery for the employees’ breach of the duty of loyalty to their employers. 

The Fourth Circuit has deemed this tort action permitting damages for a “certain kind of trespass” violates the First Amendment where newsgathering is concerned. 

The parties ask whether audio visual recording must always be protected  Petitioners assert that there must be no “newsgathering”exception to a general law.

Respondents note that petitions earlier conceded that the North Carolina statute is designed to inhibit speech.  The statute punishes whistleblowing.  

Tingley v. Ferguson, No. 22-942

The State of Washington enacted a Counseling Censorship Law which imposes upon licensed psychotherapists a prohibition against discussion of changes in sexual orientation or identity, while permitting discussion that supports identity exploration.  

Petitioner Tingley, a Christian marriage counselor, failed in challenging the law in the lower courts, as those courts considered the censorship law to be a regulation of conduct, and not of speech, thereby obviating any First Amendment concerns.

The state opposes petitioner, arguing that the law is established that conduct may be regulated even if it incidentally burdens speech and that professions may be regulated even if the profession consists largely of speaking.

The state opens its brief with arguably scurrilous characterizations of Christians, and at the same time offers that the case is not significant enough for the Supreme Court to review.  Petitioner is the only therapist in the state who has complained.  Moreover, if petitioner wants to provide ‘conversion therapy,’ petitioner can do so in settings other than therapy, such as in churches, so there is “no real problem.” 

While the state presents elaborate criticisms of “conversion therapy” without ever mentioning whether the statute might be construed to prohibit discussion of gender transition.  

Amici join petitioner in seeking an opinion that not only declares that the Washington statute is unconstitutional, but also one that declares an end to Employment Division v. Smith, 494 U.S. 872 (1990). 

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Stay!  Just a little bit longer…Supreme Court extends to September 27th its administrative stay in case enjoining Biden officials from interference in social media platforms

Murthy, et al. v. Missouri, et al., 23A243.  Order extending stay to September 27 entered September 22, 2023.

With briefing by principal parties completed, on Friday the 22nd, the day on which its initial stay would dissolve, Justice Alito extended until September 27 the administrative stay of an injunction against federal officials issued by a federal district court on July 4th.  

The Federal District Court for the Western District of Louisiana issued a 155 page memorandum detailing based the court’s perception that federal officials had unlawfully coerced social media entities in their moderation activities during the Covid-19 pandemic, which actions violated plaintiffs’ First Amendment rights.  The accompanying order enjoined federal officials from further such acts.  

On appeal, the U.S. Court of Appeals for the Fifth Circuit agreed with the government officials’ arguments that the trial court’s order was overbroad and vague.  The three judge appellate panel dismissed many federal defendants against whom no case had been articulated, and, most significantly, narrowed yet maintained the gist of the trial court’s order enjoining federal officials from coercive activities with social media platforms.

A petition to stay or, in the alternative to grant certiorari, was submitted to Justice Alito on September 14th.  

Federal officials reiterated their arguments that the plaintiffs have no standing to bring the case, that federal officials cannot and ought not be constrained by the courts.  The federal government has its own voice, the officials submit, and ought not be restrained in voicing its policies, including criticisms of others.  

The federal officials have asserted that they only coerced, but never compelled, the social media companies.  However, they appear to argue that they cannot discern the difference between those activities, and thus remain forever imperiled by the trial and appellate court’s orders.  

The extended stay will, absent further action, lapse on the day after the Supreme Court’s first case conference of the 2023 term on September 26.  Whether the justices will consider the government officials’ petition to consider the petition as one seeking certiorari is anyone’s guess.  The first conference of the term is dubbed the “long conference” because of the volume of business for the justices to attend to before getting underway for the term. Whether the justices will seize the opportunity to make the conference even longer will likely remain unknown until the 27th. 

The significance of this case, as noted by the “Kennedy Plaintiffs,” as amici here, cannot be understated, even in an atmosphere already permeated with not infrequently outlandish hyperbole.  

This time it might be true, the Kennedy Plaintiffs have noted.  

Justlawful likewise notes that this case seems to have it all.  Whether viewed from the perspective of Article III standing or First Amendment concerns. Can individual plaintiffs, strangers to the dialogues between social media platforms and the federal officials, establish an interest affected by those dialogues that a court can redress, particularly where the pandemic has ended?  Can federal officials demand that social media platforms revamp their moderation policies so that content  providing “misinformation” or “disinformation,” as defined by federal officials, must be removed? Is such activity state action and do social media platforms become state actors in such circumstances, raising constitutional concerns. 

As interesting as these issues may be, and as the case may be in conflict with other federal circuit courts’ views, it should be borne in mind that the Roberts Court is a court of incrementalism and not one of activism.  

Nonetheless, it cannot escape the Court’s attention that cases raising First Amendment and other constitutional concerns have arisen multiple ways as the internet has assumed center stage in 21st century communications.   Where such matters are clamoring for the Court’s attention, judicial conservatism and deference, however wise such principles may otherwise  be, may begin to ring hollow here.  

As much as it is striking that the Supreme Court of the United States has become a court of first, rather than last, impression as a result of the explosion of emergency petitions, the widespread use of national injunctions, and the expansion of Supreme Court advocacy, this phenomenon is now well established.  Leaving all concerned to fend for themselves by denying review is not necessarily a good look for the Court. 

Time will tell.

Filings Related to Supreme Court Petition for Stay

23A243 Application for Stay

23A243 Opposition to Application for Stay

23A243 Reply Supporting Application for Stay

23A243 Brief of Amicus in Opposition to Stay

23A243 Brief of Amicus Kennedy Plaintiffs

23A243 Brief of Amicus Foundation for Freedom Online

23A242 Brief of Amicus State of Ohio

Fifth Circuit and U.S.D.C. Opinions and Orders

23-30445 Missouri v Biden 5th Cir. 9.8.2023

22-cv-01213 Missouri v. Biden Ruling July 4, 2023

22-cv-01213 Missouri v. Biden Judgment July 4, 2023

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Biden Administration Involvement with Social Media Platforms During Pandemic Likely Violated First Amendment, Fifth Circuit Concludes

Missouri, et al. v. Biden, et al., No. 23-30445 (5th Cir.) Per curiam opinion of three judge panel released September 8, 2023.

The United States Court of Appeals for the Fifth Circuit, having reviewed the record and the law concerning injunctions relating to First Amendment claims, has concluded that the United States District Court did not err in enjoining the Biden Administration, the Surgeon General, the Centers for Disease Control, and the Federal Bureau of Investigation from further coercion or excessive encouragement of social media platform’s policies and practices concerning content and accounts. In a per curiam opinion, the three judge panel of the Fifth Circuit found no error in the perception that federal leaders substantially engaged with social medial platforms, threatening punishment should the platforms not acquiesce in government commands, in likely violation of the First Amendment rights of plaintiff private citizens and states.

The appellate court did not agree that other named defendants were likely to have violated the First Amendment, as their actions did not create such a close nexus between government and private entities actions that the the acts of the platforms could be seen as the acts of the government.

Notwithstanding the perceived Executive Branch and law enforcement violations of the First Amendment, the Fifth Circuit observed that the federal government has and retains the power to convey its own messages, and may communicate with social media platforms to address those messages, provided such engagement with the platforms is not coercive.

Let us count the ways. The opinion recounts the ways in which, on multiple occasions, the White House, the Surgeon General, the Centers for Disease Control, and the Federal Bureau of Investigation injected themselves into the operations of social media platforms during the Covid-19 pandemic, ostensibly in the, only name of inhibiting the dissemination of misinformation, by insisting on removal of information disfavored by the government, demanding reforms of moderation policies, and none too subtly indicating that the platforms’ failure to comply with government demands could have adverse consequences.

Individual Plaintiffs: What is Past Is Prologue. The Fifth Circuit rejected the government’s argument that any injury suffered by the individual plaintiffs is wholly in the past, negating standing to seek to enjoin future harms.

The court opined that past speech suppression has created a prior restraint operating against plaintiffs in the present in the form of fearful self-censorship, which circumstances support standing to seek injunctive relief.

Moreover, the restoration of accounts that had been suppressed and representations that future harm will not occur did not persuade the court, as the key issue is government interference, not media self-governance.

Not Exactly Hands Off. The court rejected the argument that all of the decisions were those of the social media platforms, as the core issue is coercive government interference with the media platforms, and that government intrusion is demonstrated on the record of the case.

Injunctive Relief Can Help. The court found redressability to have been established where granting relief would preclude unlawful government interference with social media entities moderation policies, which demonstrates that there is a relationship between the request relief and the harms alleged.

Government Plaintiffs’ Speech Interests. The Fifth Circuit panel rejected the argument that states have no First Amendment rights, as states can be seen to have a sovereign right to speech on the states’ own behalf, and the states are injured where state officials’ accounts are “censored, due to federal coercion.” Slip op. at 26. In addition, states’ reciprocal listening to citizens is impaired by federal interference with media platforms.  

The crux of the matter. “The government may not abridge free speech.” Slip op. at 28. Although a private party has no such obligation concerning free speech, that is not the case where the government coerces or encourages a private party to behave in a way that would be unconstitutional had the government acted alone.

In the Missouri v. Biden opinion, the Fifth Circuit panel has adopted nomenclature respecting considerations relevant to government coercion or significant encouragement that will be called the “close nexus” test, obsoleting former phrases as “fair attribution” or “state compulsion.” The panel noted that this case does not involve “joint action.”

The “close nexus” test examines the actions complained of and the scope of government intervention, whether by innocuous persuasion or problematic coercion or significant encouragement.

Significant encouragement must be active and meaningful control over a private party’s decisions. Mere regulation cannot be enough. To establish a “close nexus,” it must be shown that the government is practically “responsible” for the decision.” Slip op. at 31, citing Blum v Yaretsky, 441 U.S. 991, 1004 (1982).

Active meaningful control must be present either through entanglement in decision making or direct involvement in carrying out the decision, such that the decision must be seen as that of the state.

Significant encouragement may exist without either joint action or complete control of the private party.

Coercion or compulsion will also satisfy the “close nexus” test, although coercion may be more subtle, as the state is free to advocate for its own positions. Examining whether there is persuasion or intimation of punishment for failure to comply with a government request may be a tipping point toward establishing coercion.

Distinguishing convincing versus coercive behavior may be obtained by examining a government speakers choice of words and tone, the perception of threat, regulatory authority, and adverse consequences. Slip op. at 36, citing National Rifle Ass’n v. Vullo, 49 F.4th 700, 715 (2nd Cir. 2022).

Seeming may warrant believing. The Fifth Circuit thinks that a government demand may be coercive even if the speaker lacks direct authority to make good on a threat, so long as there is some power in operation in the background. Slip op. at 47-48.

Actual direct authority is not necessary to engage in impermissible pressure.

Explicit vocalization of a threat is not necessary if the threat is apparent from the circumstances.

Not to put to fine a point on it. In this case, government officials told social media platforms that they were killing or poisoning people and that fundamental reforms were in the offing to ensure the platforms’ accountability.

Simply going along with “no strings attached” state requests, without threat of punishment, is not sufficient to create a “close nexus” between private action and government interference with speech, as the Ninth Circuit has opined. But here, however, the Fifth Circuit has concluded that officials’ statements could be construed as threats.

The Fifth Circuit found that government officials significantly encouraged content moderation by “exercising active, meaningful control over platform decision making, including entangling themselves with platform moderation policies.

The panel observed that what were initially simple inquiries into social media moderation processes bloomed into questions about internal processes and then evolved into questions about why certain content was not removed. Moreover, federal officials would demand that private companies change their policies, doing so both privately and publicly.

The social media companies capitulated and advised the White House that they would accede to the government’s demands.

In addition to White House and other high level official involvement, the FBI urged the social media companies to take down content. it was not necessary to articulate any threat where inherently coercive authority pervaded the law enforcement function. Similarly, specific consequences did not need to be articulated where all concerned were aware of the armament of remedies the FBI had at its disposal. Threats of hacking by state actors to spread misinformation intimidated the social medial platforms sufficiently to prompt the sites to take down content and close accounts in compliance with FBI directives.

Just as administration officials had done, the FBI injected itself into platform decision making, making recommendations that platforms adopted. When those recommendations became interwoven into social media platform decision making, it could no longer be said that the platforms were acting interdependently of significant federal involvement. Slip op. at 56.

The Centers for Disease Control were not plainly coercive but significantly encouraged moderation decisions, particularly by flagging content for removal. However, as the CDC had no power to compel social media platform decisions, nor did they allude to adverse consequences, the Fifth Circuit did not perceive coercion.

However, significant encouragement by the CDC was found in “Be on the Lookout” meetings among officials and media representatives and “advisories” about “hot topics” concerning the pandemic. Concomitantly the CDC directed changes to platform moderation policies. On inquiry by the platforms, the CDC would pronounce whether content was ‘misinformation’ and/or in need of government approved labels. Platforms sought approval from the CDC to conform their acts to CDC dictates, refraining from actin where the CDC had not weighted in on particular items. Slip op. at 58.

The social media platforms could not and did not act independently in these circumstances, the Fifth Circuit found. While not compelled, the platforms’ content decisions could nonetheless be deemed to be those of the states.

Other federal powers persuasive, but not compelling. The National Institute of Allergies and Infectious Diseases (NAIAD), the Department of State, and the Cybersecurity and Infrastructure Security Agency (CISA) did not communicate with social media platforms, although Anthony Fauci, M.D., Director of NAIAD, promoted some government views, while discouraging others.

The appellate court stressed that government is permitted to express views without offending the First Amendment, and here, in the absence of coercion or significant encouragement, these federal officials cannot be seen to have violated the First Amendment.

The Department of State alerted social media platforms about adverse state actors’ methodologies, but took no part in engagement in content, flagging items, or policy changes. There were not threats and no apparent authority to execute threats.

CISA flagged content, but the Fifth Circuit found this to be convincing rather than coercive, and CISA had no power nor did its requests threaten, although the requests were not trivial.

The federal district court was correct, the Fifth Circuit has concluded, except that the trial court included individuals in its order of injunction that had not engaged in impermissible coercion significant encouragement. Thus, their acts could not be seen as creating the kind of ‘close nexus’ that would permit concluding that the acts of the government and the acts of the private entity were in unison, the latter being attributable to the former, and in violation of the First Amendment, as the government could not have taken such actions on its own without violating the First Amendment.

No repair to be had. The Fifth Circuit reiterated the well established principle that deprivations of First Amendment rights, even for brief periods of time, can be seen as causing irreparable harm. This was seen as true in this case where assertions support the notion that further First Amendment deprivations are threatened.

Speech freedoms in the balance. The appellate panel stated that the balance of equities may be examined in light of the public interest versus that of the government, stressing that where the government is the opposing party, as in this case, the public interest and the government interest are merged.

“Government speech” cannot cancel First Amendment rights. The Fifth Circuit has rejected the argument that the executive branch’s “government speech” interests outweigh plaintiffs’ First Amendment rights, nor may the government use “government speech” to “silence or muffle the expression of disfavored viewpoints.” Slip op. at 64, citing Matal v. Tam, 582 U.S. 218, 235 (2017).

Even though it is correct that the government wants to communicate with social media companies, the government cannot pursue its ends to the extent that the government engages in viewpoint suppression. Moreover, the appellate court stressed, the use of injunctions to protect First Amendment freedoms are always in the public interest. Equity favors the plaintiffs, the court has found Slip op. at 64, citing Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 295 (5th Cir 2012).

But! But! With all these considerations favoring the plaintiffs’ requests for injunctive relief, the appellate court found that the trial court had erred in issuing an order that was far too broad — reaching individuals and entities who had not potentially violated the First Amendment — and far too vague — leaving properly affected individuals and entitles to ‘guess’ at what interactions with social media companies would be permitted and what would be forbid. den. Slip op. at 65-66.

Friendly persuasion permissible. It is not unlawful for the government to urge, encourage, pressure, or induce any social media company to act with respect to content moderation unless the government “crosses the line into coercion or significant encouragement.” Slip op. at 66.

Similarly, following up with media companies about content or requesting reports or asking companies to watch out for posts is not unlawful. Id.

Immediate reform of order indicated. The vagueness of the order of injunctive relief is highly problematic, the Fifth Circuit has found, as the government cannot know what might be impermissible where such broad generalities are used. The injunction’s carve-outs do not cure this problem.

Barring the government from working i partnership with private entitles on social media policies is impermissible, particularly where doing so would impact their rights of third parties not involved in this suit, which entitles have First Amendment rights of their own, concerning which no prior restraints ought to be attached

While the ordinary remedy would be remand, in light of the press of time in this case, the Fifth Circuit determined that it would revise the initial trial court order itself, revoking all but one provision and modifying that provision 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

Slip op. at 70.

The Fifth Circuit has emphasized that the government defendants cannot coerce or significantly encourage content moderation decisions, threaten adverse consequences, or threaten harm upon noncompliance, nor can the government supervise content moderation decision or engage in those decisions. Slip op. at 71. Simply stated, the government may not interfere with social media platforms’ independent decision making.

Beneficiaries not present. The appellate court is not troubled by the fact that potential plaintiffs not parties to this case might benefit from the injunction against government interference in social media platforms. The extension of benefits to non-parties is not overly broad where the harms that flow from government actions affect every single social media user.

The upshot. Through its September 8, 2023 Opinion and Order, the Fifth Circuit has taken the following action concerning the July 4, 2023 Order of the U.S District Court for the Western District of Louisiana:  

Affirmed respecting:

The White House

The Surgeon General

The Centers for Disease Control

The Federal Bureau of Investigation

The affirmation of the injunction affects the following individuals and entitles:

Executive Office of the President of the United States: 

White House Press Secretary, Karine Jean-Pierre; 

Counsel to the President, Stuart F. Delery; 

White House Partnerships Manager, Aisha Shah; 

Special Assistant to the President, Sarah Beran;

Administrator of the United States Digital Service within the Office of Management and   Budget, Mina Hsiang; 

White House National Climate Advisor, Ali Zaidi; 

White House Senior COVID-19 Advisor, formerly Andrew Slavitt;

Deputy Assistant to the President and Director of Digital Strategy, formerly Rob Flaherty; White House COVID-19 Director of Strategic Communications and Engagement, Dori Salcido; 

White House Digital Director for the COVID-19 Response Team, formerly Clarke Humphrey; 

Deputy Director of Strategic Communications and Engagement of the White House COVID-19 Response Team, formerly Benjamin Wakana; 

Deputy Director for Strategic Communications and External Engagement for the White House COVID-19 Response Team, formerly Subhan Cheema; 

White House COVID-19 Supply Coordinator, formerly Timothy W. Manning; and Chief Medical Advisor to the President, Dr. Hugh Auchincloss, along with their directors, administrators and employees.

Surgeon General Vivek H. Murthy; 

Chief Engagement Officer for the Surgeon General, Katharine Dealy, along with their directors, administrators and employees. 

The Centers for Disease Control and Prevention (“CDC”):

And specifically the following employees: 

Carol Y. Crawford, Chief of the Digital Media Branch of the CDC Division of Public Affairs; 

Jay Dempsey, Social-media Team Leader, Digital Media Branch, CDC Division of Public Affairs; and 

Kate Galatas, CDC Deputy Communications Director. 

The Federal Bureau of Investigation (“FBI”):

And specifically the following employees: Laura Dehmlow, Section Chief, FBI Foreign Influence Task Force; 

Elvis M. Chan, Supervisory Special Agent of Squad CY-1 in the FBI San Francisco Division.

Reversed as to:

NIAID Officials

CISA Officials

State Department Officials.

Vacated except as to provision six as modified by the Fifth Circuit on September 8, 2023.


Stayed administratively pending application for Supreme Court review

Missouri v. Biden No. 23-30445 (5th Cir.) September 8, 2023

Missouri v Biden 22-cv-1213 (W.D. La.) July 4 2023

 

 

 

Posted on by justlawfulblog

The (Ex)-Cardinal sins successfully, or so it would seem to some

Theodore McCarrick, once a darling within the Catholic hierarchy who traversed the globe promoting peace and raising money, served as Cardinal for two U.S. archdioceses, maneuvered the white smoke machinations of the Vatican like a boss, and even spearheaded a campaign against clergy sexual abuse, was declared unfit to be tried on those very same charges on August 30th by a trial court in Dedham, Massachusetts.  

McCarrick faced charges that he molested a minor at a wedding  a half-century ago in Wellesley, Massachusetts.

Defense counsel’s forensic examination of McCarrick indicated cognitive impairment sufficient to make it impossible for him to participate in his own defense. In turn, an examination by the Commonwealth reached the same conclusion, causing the prosecution to recommend dismissal, which recommendation the court accepted. 

The Massachusetts criminal charges against McCarrick were of note not only because of McCarrick’s once prominent place in the church hierarchy, but also because of the strategy adopted by the Commonwealth of Massachusetts, which relied on an unusual feature of state law that holds that the statute of limitations never closes when a potential accused leaves the state.  This permitted proceeding to try to convict of misconduct said to have occurred in 1974, when the complaining witness was fourteen years old.

McCarrick remains in residential care in the Midwest. 

Additional proceedings await in Wisconsin.  

The case has received significant attention, as shown through a few examples here.  

New York Post: Ex-Cardinal Unfit for Trial

Sexual abuse charges dismissed against McCarrick as ex-cardinal ruled unfit to stand trial

Sex Abuse Charges Against McCarrick Dismissed, Ex-Cardinal Still Faces Charges in Wisconsin

WCVB: Ex-Cardinal Unfit to Stand Trial

Examiner: Disgraced Cardinal Unfit to Stand Trial

NCR: Bishop Accountability Group Finds Dismissal Hugely Disappointing

First Things: McCarrick, Not Pope, Proper Subject of Report

McCarrick’s Escape: An Allegory for our Times

Posted on by justlawfulblog

Canadian Court Upholds Professional Regulatory Body’s Imposition of Remedial Measures on Outspoken Psychologist Jordan Peterson

Peterson and College of Psychologists of Ontario, 2023 ONSC 4685, August 23, 2023.

Rights to free expression must yield to regulated profession’s interest in upholding primary principles of human dignity and public confidence in the profession:  outspoken Canadian psychologist Jordan Peterson’s public comments merited professional remediation, Canadian Superior Court in Ottawa has concluded.  

In 2022, Jordan Peterson, Ph.D., made several public pronouncements concerning, among other things, sexual transitioning, obesity, and the characters of a former client and a public figure.  Those remarks provoked an onslaught of complaints to the psychology profession’s regulatory body, the College of Psychologists of Ontario, which, upon investigation, ordered Peterson to undertake coaching so as to conform his remarks to professional standards requiring that all persons be accorded dignity.

Peterson refused and requested judicial review, stating that he had undertaken his own remediation and that his speech interests were unduly impacted by the board’s measure, which was not considered to be punitive, but which would lead to discipline if it were not completed.  

The Superior  Court  of Justice in Ottawa found no error in the professional regulatory body’s finding that public confidence in the profession requires that speech conform to ethical standards.  The profession of psychology in Ontario holds “human dignity” as a first principle, requiring that psychologists refrain from words or actions that would offend that dignity or result in discrimination.  

Thus in at least one province, Canada has concluded that public expression must be constrained by professional codes of ethics. Peterson has been assessed $25,000.00 in costs. 

Peterson-v.-College-of-Psychologists-of-Ontario-DC-714-22-FINAL-18-August-2023 (1)