Expedition upon Expedition: Former President Trump Seeks Supreme Court Intervention to Reverse the Eleventh Circuit’s Intervention in Special Master Proceedings; Department of Justice Seeks to Speed Up Appellate Review

Trump v. United States. No. 22-13005 (11th Cir.); Trump v. United States, No. 22-81294 (S.D. Fla.). Application to Vacate the Eleventh Circuit’s Stay of an Order Issued by the United States District Court for the Southern District of Florida. Petition to the Associate Supreme Court Justice of the United States for the Eleventh Circuit submitted October 4, 2022.


Former President Trump seeks the aid of the United States Supreme Court in vacating an order of the United States Court of Appeals for the Eleventh Circuit which stayed a lower court’s order.  The lower court’s order precluded the use of documents with classification markings in  a criminal investigation while the documents were under review by a Special Master appointed by the court.  The Eleventh Circuit’s order countermanded that determination which in turn permitted resumption of use of the documents in criminal investigations.

The former president argues that the Eleventh Circuit had no power to rule on the Department of Justice’s request, as the ruling was an interlocutory, or non-final ruling.  Such rulings are not permitted except in limited circumstances.

At the same time, the Department of Justice seeks to press ahead in its request for appellate review of the federal district court’s actions.

 

Application to Vacate Eleventh Circuit Order October 4, 2022

Opposition to Appellant’s Motion to Expedite Appeal October 3, 2022

Motion to Expedite Appeal September 30, 2022

Carry On, Criminal Investigators! Eleventh Circuit Stays District Court Order Prohibiting Use of Classified Documents Seized from Former President’s Residence Pending Special Master Review


Donald J. Trump v. United States of America, No. 22-13005 (11th Cir.) Order issued  September 22, 2022 (Not For Publication).


In recent weeks, on application by former President Donald J. Trump, the United States District Court for the Southern District of Florida issued an order appointing a Special Master to assist in reviewing materials seized during an August search of the former president’s residence at Mar-a-Lago.  Pending completion of the Special Master’s review, the court ordered federal investigative officials to refrain from using any of the seized materials bearing classification markings, but specifically noted that classification review could continue.  The trial court denied the United States’ motion to stay that portion of the order that would preclude use of documents with classified markings in any ongoing criminal investigation and that would require submitting the documents with classification marking for review by the Special Master.  

The United States sought interlocutory review in the Eleventh Circuit Court of Appeals.  The Eleventh Circuit reviewed the trial court’s order according to principles governing issuance of injunctions, and found that the trial court, which has broad, yet not unbounded discretionary to such relief, erred in granting relief in the absence of evidence of callous disregard for the former president’s interest and in the presence of potential for serious harm to the government’s and the public’s interest if investigation is foreclosed.  The Eleventh Circuit has stayed the preclusion and turnover portions of the trial court’s order.

Trump v. U.S. No. 22-13005 (11th Cir.) Order of September 21, 202

Fifth Circuit Concludes the First Amendment Protects Speech, Not Censorship, Finding No Infirmity in Texas Law Promoting Fair Access to Internet Platforms


Net Choice, LLC, et al., v. Paxton, Attorney General of Texas, No. 21-51178 (5th Cir.) September 16, 2022.


Plaintiffs are internet technology platforms which have objected to recently-enacted Texas legislation intended to preclude viewpoint censorship.  Plaintiffs argue that the bill on its face violates the platforms’ First Amendment rights.

A three judge panel of the Fifth Circuit  has published its perceptionthat Net Choice and other plaintiffs have an inverted view of the First Amendment, which assures persons of the right to freedom of speech but which does not incorporate a corollary, but unenumerated, right to restrain speech.  In its September 16, 2022 opinion, the panel stated:

Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say.

Slip op. at 2.

The panel dismissed the notion that, as the platforms would have it, providers could terminate the accounts of anyone, particularly anyone articulating a disfavored view.

A platform might achieve market dominance by promising free speech, yet once ensconced as “the monopolist of ‘the modern public square’,” the platform might about face to cancel and ban anyone the platform’s employees might choose to disfavor.  Slip Op. at 2, citing Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017).

The Texas bill in question precludes large media platforms from engaging in viewpoint discrimination with respect to access, excepting non-protected speech and speech specifically restricted by federal law, such as speech harmful to minors or other protective measures. Slip op. at 4.  Those who are restricted and believe this to be wrongful may seek relief in courts.  The state also might enforce the statute.

In addition, platforms must publish their moderation and use policies to the state concerning their moderation activities and actions, and mandates a complaint and appeal process for the platform’s users.

The Fifth Circuit panel noted that pre-enforcement facial challenges to to new laws, particularly any law concerning speech, are disfavored. Not only are courts constrained to decide only cases and controverses, but also federalism and comity concerns arise when federal courts review state laws before states have had the opportunity to do so.   To this must be added the extraordinarily high standard that attaches to facial challenges:  the challenging party must show that under no circumstances could the law in question be valid.

Here the challenge is one of overbreadth, a judicial doctrine intended to avoid chilling speech or association.

In this case the concern is not one of chilling speech, but of chilling censorship.  Censorship is inconsistent with the ‘pure speech’ that the overbreadth doctrine addresses.  Censorship is, at most, expressive conduct, to which only the most attenuated protections might attach.

No case directly supporting facial application of the overbreadth doctrine to censorship has been found, the court observed, and the as-applied challenges the platforms cite were presented when there were concrete challenged applications, unsuitable for use as a mechanism for invalidating a statute not yet operative.

Overbreadth challenges are intended to protect strangers to the litigation who could not lodge as-applied cases and whose speech would be chilled by an overly broad law.

The Fifth Circuit squarely rejects the notion that the Texas legislation inhibits speech by inhibiting platforms’ removal of speech, denouncing as inapt the platforms’ attempts to recast their censorship as protected speech.

The court also has declined to locate within the platforms’ notions of ‘editorial discretion’ any specifically protected speech interest.  Section 230 of the Communications Decency Act of 1996 hinders rather than advances the platforms” arguments.

The panel did not favor the planforms’ strained construction of censorship as speech to be protected, while nonetheless insisting no speech is involved in invoking the protections of Section 230.

Even if editorial discretion could be seen as a protected legal category, advanced content arrangement and censorship could not meet qualification as a protected category.  No such category of individual discretion has been recognized.  As the Texas stattue neither forces the platforms to speak or interferes with their speech, the Texas legislation is not constitutionally defective.

While standing alone the Texas statute is constitutionally sound, Section 230 removes all doubt, for it specifically states that platforms are not publishers or speakers when they host others’ content.

The appellate panel has concluded that Texas was correct in characterizing the social media platforms as “common carriers’ subject to nondiscrimination regulations.”  Slip op. at 53.

The court rejected the platforms’ assertion that the platforms are not part of the communications industry, for their own representations confirm that communications is their purpose.  The platforms hold themselves out to the public as ‘traditional’ common carriers do, ostensibly serving all on the same terms.  Slip op. at 54.

The court also rejected the idea that platforms might elide that common carrier obligations by  promulgating their own internal regulations for use.  This is immaterial, in that the same terms apply to all.

The circularity of the platforms’ argument that they are not common carriers because they engage in viewpoint discrimination, a position offered in order to avoid common carrier regulation is “upside down,” much as is the argument that they cannot be common carriers because they remove some obscene speech, as the law permits this, much as transit carriers would be permitted to oust ill behaved riders.  To put a fine point on it:

The Platforms offer no reason to adopt an ahistorical approach under which a firm’s existing desire to discriminate against its customers somehow gives it a permanent immunity from common carrier nondiscrimination obligations.

Slip op. at 55.

Moreover, at this time it is difficult to avoid recognizing that the public interest in a wide swath of  topic’s underlies and informs much, if not most, use of social media and other internet platforms.

Several federal courts of appeal have recognized platforms as public forums.  Slip op. at 56. Where such platforms serve as central locations for public debate, exclusion from the forums is exclusion from public debate.  Slip op. at 56.  Additionally, the platforms are central operators in economic life, generating wealth through advertising and access.  Platforms may become entrenched in a particular area that cannot be reproduced by competitors, and thus is irreplaceable to users.

Government licensing is not necessary to establish common carrier monopoly, but if it were, Section 230 would suffice.

The platforms’ arguments about state nondiscrimination rules applicable to common carriers overlook that challenges to such laws were successful only where the laws did not further anti-discrimination but supported discrimination.  Other cases from the Lochner era have been long ago been discredited and cannot be revived now.

The platforms’ similarity to common carriers only undermines their assertion that their speech rights are involved.  Common carriers transport the speech of others, but this does not involved any speech rights of the carriers.

Even if the platforms’ speech interests were implicated, facial pre-enforcement relief could not be granted where the content and viewpoint neutral legislation would survive intermediate scrutiny.

The platforms’ complaints about what they assert are burdensome disclosure and reporting requirements do not merit pre-enforcement relief, and the platforms do not point to any impingement on any First Amendment rights that would arise during compliance.  Moreover, any additional effort needed to tailor existing complaint processes does not imply any chilling effect, as the processes are intended to impede censorship, not speech.  Hypothesized flaws in the process do not merit pre-enforcement review, because the platforms cannot show that the lion’s share of the legislation is unconstitutional.

The Fifth Circuit has declined to follow the eleventh Circuit, which recently enjoined a Florida law inhibiting platforms” censorship.  The Florida law only concerned censorship of politicians campaign speech. The Florida law “prohibits all censorship of some speakers, while [the Texas law] prohibits some censorship of all speakers.”  Slip op. at 80.  Moreover, the Florida law implicated the platforms’ own speech by forbidding the platforms from adding addenda to others’ content.   Finally, the fines to be levied under the Florida law are onerous when compared with the non-monetary equitable relief provided to platform users by the Texas law.

The Fifth Circuit does not join the Eleventh Circuit’s view that there is a recognized category of protected speech called “editorial discretion,” The Fifth Circuit further refuses to consider censorship as protected speech and further does not agree that the common carrier doctrine does not support the imposition of nondiscrimination obligations on the platforms.

In a separate concurrence, Judge Edith H. Jones agreed that forbidding censorship is not forbidding speech:

In particular, it is ludicrous to assert, as NetChoice does, that in forbidding the covered platforms from exercising viewpoint-based “censorship,” the platforms’ “own speech” is curtailed. But for their advertising such “censorship”—or for the censored parties’ voicing their suspicions about such actions—no one would know about the goals of their algorithmic magic. It is hard to construe as “speech” what the speaker never says, or when it acts so vaguely as to be incomprehensible. Further, the platforms bestride a nearly unlimited digital world in which they have more than enough opportunity to express their views in many ways other than “censorship.” The Texas statute regulates none of their verbal “speech.” What the statute does, as Judge Oldham carefully explains, is ensure that a multiplicity of voices will contend for audience attention on these platforms. That is a pro-speech, not anti-free speech result. 

Slip op. at 91.

Even if speech were involved, Turner Broadcasting v. FCC, 512 U.S.  622 (1994), found that, if speech is involved where cable companies choose channels, under intermediate scrutiny ‘must carry’ preferences are content neutral.  Cable companies did not need to modify their own speech, the mandated speech was not associated with the operators, and the selection of channels could silence competitors.

Additionally, even if the platforms are correct in arguing that Texas’ legislation might chill the platforms” speech, this will not survive a faction attack:

Case by case adjudication is a small burden on the Goliaths of internet communications if they contend with Davids who use their platforms. 

Slip op. at 92.

Judge Leslie H. Southwick separately concurred in part and dissented in part.  Judge Southwick agreed that a facial attack on a state law is unlikely to succeed and that the platforms’ businesses are of great public importance.  He rejected the idea that the court’s conclusions can be recast by an ill-fitting speech/conduct distinction.

The judge observed that what the majority perceives to be censorship he perceives to be editing, and editing in a novel format, having its closest analog in newspaper editorial functions which the Supreme Court has found to be protected First Amendment activity.  Slip op. at 96.

If the First Amendment is involved, this judge agrees with the Eleventh Circuit that the government does not have a substantial interest in preventing unfairness, but the private actors do have an interest in freedom to be unfair.   Slip op. at 108-109.

Moreover, prohibitions on the de-platforming or de-monetizing go too far in attempting to serve any interest the government may have in protecting the free flow of information.  Slip op. at 110.

The judge believes that the common carrier cases do not strip carriers — here, platforms — of a First Amendment right to their own speech. Slip op. at 110-111.  Similarly, Section 230 does not impact platforms’ rights to moderate content. Slip op. at 111. Section 230 exists to underscore that a platform that publishes third party content does not endorse it or adopt it as its own.

Although concurring with the panel’s judgment, Judge Southwick cautioned that when platforms make decisions about permissible speech and its presentation. the platforms are involved in activity which is protect by the First Amendment, which does not require fairness.  Slip op. at 113.

NetChoice, et al. v. Attorney General of Texas, No. 21-51178 (5th Cir.) Opinion issued September 16, 2022

Gadflies Allowed:  Maine School Board Cannot Banish Parent Whose Speech Causes Them Discomfort


McBreairty v. School Board of RSU22, et al., No. 1:22-cv-00206-NT (D. Maine).  Order granting temporary restraining order entered July 20, 2022. 


Public Schools, Public Participation.  Public schools in Maine are managed through town participation in Regional School Units, here RSU22.  The public is invited to participate in school decision making through time set aside for public comment at town school board meetings.  That public participation is governed by guidance requiring common etiquette and forbidding speech in excess of three minutes, gossip, complaints about individuals, defamation, and vulgarity.

Violation of these policies may result in removal from the meeting. 

Trouble in RSU22. Beginning in the autumn of 2021, and continuing until early May, 2022, parent and Hamden town resident Shawn McBreairty spoke at meetings about his concern that school library materials included sexual material not appropriate for students.

At times McBreairty was said to exceed three minutes’ speech, on one occasion he made a brash accusation, and he was criticized for playing a recording describing a sexual act that gave rise to his concerns.

In May, 2022, the school board wrote to McBreairty’s counsel, providing notice that McBreairty was suspended from attending further school board meetings for eight months.  Upon arrival at a June, 2022 board meeting, McBreairty was precluded from attending, and was issued a criminal trespass notice forbidding his attendance at RSU22 school functions, whether in person or online.

McBreairty sued the school board in federal court alleging violation of his First Amendment rights and demanding immediate injunctive relief.

Injunctive Relief and the First Amendment.  Courts cannot compel action or restraint from action before trial unless a complainant can demonstrate a likelihood of success on the merits of his case, that irreparable harm would result if injunctive relief were not granted, that the balance of equities favors relief, and that the public interest would be served by relief.  

Irreparable harm is presumed when speech is restricted.  

Obscene speech is not protected by the First Amendment.  Here, however, the court found that McBreairty’s reference to a sexual act lacked prurience and was not, in the context, without merit.  Thus the speech found objectionable by the school board was nonetheless protected by the First Amendment.

Foraging through Forum Analysis.  The government must establish the constitutionality of any speech restrictions the government imposes.  Review considers the places where speech will occur and the purposes of any gathering.  “Forum analysis,” which proceeds from great liberality in speech to some restrictions upon speech, while superficially appealing, is nonetheless not infrequently something of a bog.

The federal court in Maine has provided a primer describing the degrees and kind of government restrictions that are n .  Traditional public forums, such as parks, streets, or other places historically used for public communications, are free from regulation except where a government can demonstrate that any restriction is neutral and narrowly tailored to a compelling government interest. While time, place and manner restraints may be imposed, alternative communication channels must exist.  

Where a government has designated that a space be open to the public, the same rules as for traditional public forums apply. 

Limited public forums are open to certain groups or for certain topics, and speech may be restricted provided no permissible speech is restricted on the basis of viewpoint and that any restriction is reasonable in light of a forum’s purpose.  

Nonpublic government property not traditionally or by designation used for public conversations may be subjected to speech restrictions provided that the goal of any restriction is not the suppression of disfavored speech.  

Looking to Other Court’s Conclusions in the Absence of Controlling Precedent.  Neither the U.S. Supreme Court of the U.S. Court of Appeals for the First Circuit has decided what sort of forum a school board meeting is, suggesting that the court might look to the determinations of other courts, most of which have found that school meetings are limited public forums.  

The court rejected McBreairty’s argument that school boards are traditional public forums subject to only the most narrow government restrictions.  School boards meet for particular purposes to discuss particular topics:  as such, school boards may reasonably impose order on those proceedings.    

As a limited public forum, a school board may regulate access in light of the forum’s purposes but the state may not unreasonably exclude speech based on viewpoint.  

Distinguishing between content and viewpoint based restrictions allows a governing body to restrict speech as it relates to the purpose of the forum while forbidding excluding points of view on matters that are otherwise related to a forum’s purpose.  

There May Be Some Discomfort.  The court found McBreairty’s public comments concerned the school.  Even if at times unorthodox or provocative, the court perceived that in the main McBreairty did not violate school board policy, although he did do so by referencing school personnel and exceeding time limits in speaking to the board.  

While the warning letter issued to McBreairty might have carried the potential to chill speech, as McBreairty appeared undeterred as a matter of fact, that issue is not central to the decision. 

Having rejected the idea that McBreairty’s speech was obscene, the court pointed with concern toward what appeared to be an ad hoc and cumulative approach to McBreairty’s appearances before the board.  Any discomfort experienced by the board cannot justify restricting protected speech.

This Long is Too Long.  Even if viewpoint discrimination were not conclusively established, an eight month ban on McBreairty’s presence at school board meetings is unreasonable, the court found.  

Injunctive Relief Awarded.  The court found that there is a likelihood that McBreairty will prevail on his as-applied First Amendment challenge and ordered the school to refrain from enforcing the penalties contained in its letter and in the trespass notice.  While the school board has an interest in the orderliness of its meetings, that does not require months-long forfeiture of First Amendment speech rights.

McBreairty v. School Board of RSU22, No. 22-cv-00206 (D. Maine). Order granting TRO July 20, 2022

Supreme Court Vacates Stay of Injunction Precluding Effectiveness of Texas’ Law Addressing Perceived Social Media Censorship

Net Choice, et al. v. Paxton, Attorney General of Texas, No. 21A720, 596 U.S. ____. Order granting emergency petition entered May 31, 2022.



Texas legislation prohibiting content-based deplatforming or deprioritizing of social media posts remains subject to an injunction precluding its effect pending determination of the merits of challenges of the constitutionality of the statute. The Supreme Court has vacated the Fifth Circuit’s stay of a district court injunction precluding the effect of the law. 

Justice Alito has dissented from the grant of the petition, stressing that the questions presented by the case invite the Court’s review, particularly as those questions do not fit squarely within First Amendment precedent.  Neither public event, publication, public marketplace, or common carrier provisions anticipate the advent of and market power of social media platforms.  

The dissenting justice notes that the state perceives impossible incongruity between the social media platforms’ position that they may enjoy immunities under Section 230 of the Communications Decency Act of 1996 for publication of others’ content while at the same time enjoying First Amendment protection for refusing to publish that content.

Justice Alito observes that the likelihood of success on the merits must be demonstrated as to all aspects of the injunctive relief provided, but this is not the case with respect to the disclosure requirements of the Texas law concerning social media platforms’ publication standards, which are to be reviewed under less stringent standards for constitutional review of commercial speech.

Of importance is that the Texas law applies only prospectively, a circumstance which, in a certain light, renders injunctive relief pending review somewhat superfluous, as no action against any social media company has yet occurred and any action remains open to constitutional challenge if and when it occurs. 

The novelty of the questions presented, while inviting exploration, does not justify federal interference in state sovereignty, which is the result where, as here, the Supreme Court serves as a source of preclearance authority.

Justice Alito’s dissent has been joined by Justices Thomas and Gorsuch.  Justice Kagan would deny the emergency petition, but has neither joined the dissent nor written her own opinion.

Netchoice, LLC v. Paxton, 21A720, 596 U.S. ____ , May 31, 2022

The Eleventh Circuit Opines that Much of Florida’s New Regulation of Social Media May Violate the First Amendment, in Contrast to Recent Orders of the Fifth Circuit to the Contrary Now Awaiting Emergency Review in the Supreme Court


NetChoice, LLC and Computer & Communications Industry Association, d/b/a CCIA v. Attorney General of the State of Florida, et al., No. 21-12355 (11th Cir.) Order and Opinion issued May 23, 2022, affirming in part and vacating in part an injunction issued by the United States District Court for the Northern District of Florida.


Several states, including Florida and Texas, have enacted legislation aimed at compelling social media to be open to all, without banning, de-prioritizing, or de-platforming entities or posts because they present disfavored views. Texas’s law applies to the general practices of large social media sites, while Florida has addressed access by political candidates and journalists.

When the U.S. Court of Appeals for the Fifth Circuit refused to enjoin the effectiveness of Texas’s statute, NetChoice and CCIA presented an emergency petition to the U.S. Supreme Court on May 13, 2022. Just as briefing closed on the emergency petition, the Eleventh Circuit issued its opinion, which has been added to the record of the emergency petition as supplemental authority.

Unlike the Fifth Circuit, holding its legal cards close to the vest, so to speak, and issuing a non-unanimous order without opinion, the Eleventh Circuit has published a 67 page opinion examining whether it is likely that NetChoice and CCIA will succeed in demonstrating that Florida’s law is unconstitutional. Concluding that it is likely that the law will be shown to be unconstitutional, and observing that ongoing infringements of First Amendment rights are presumed to cause irreparable harm, and noting that neither the state nor the public has any interest in enforcing unconstitutional law, the Eleventh Circuit has upheld most, but not all, of the injunctive relief granted by the Northern District of Florida.

Principles Endure. The Eleventh Circuit opened its opinion by noting that new principles are not necessarily needed when new technologies emerge. The First Amendment continues to prohibit government interference in speech while protecting the speech of private actors.

‘Not Really Private’ Private Entities. Florida asserts that social media platforms are not truly private entities and has enacted legislation prohibiting de-platforming political candidates, de-prioritizing messages about political candidates, or removing content provided by an “journalistic enterprises” because of its content.

The Eleventh Circuit Disagrees. The appellate court has found that social media entities are private actors that enjoy First Amendment protections. Editorial judgement about content are protected. That protection would be unconstitutionally burdened by Florida’s legislation, not only in its editorial and content-based directives but also in its demands for disclosure of a rationale supporting any and all content moderation decisions. These observations support enjoining aspects of the Florida law.

How It Works. The Eleventh Circuit has offered a ‘primer’ about what social media platforms are” collectors of others’ speech, broadly defined to include text, photography, and video “posts” published to others. Platforms may have billions of users or exist as smaller sites for specialized interests. Several social media platforms are household names: Facebook, Twitter, and YouTube.

Private Enterprises, Private Choices. No one is obliged to avail themselves of the content social media entities provide. The government cannot restrict citizens’ access to social media platforms but that right of access attaching to citizens does not include a right to compel the platforms to accept or consume any content.

Whose Speech Is It? Much, if not most, speech on social media platforms is not created by the platforms themselves, but some speech belongs to the platforms, as is the case with publishing terms of service or community standards defining what is permitted, or creating addenda or warning, or publish a platform’s own content.

Neither Conduits nor Storage Devices, but Curators. Social media enterprises are best seen as curators and arrangers of content according to users’ wishes, while at the same time removing content that violates the terms of service or community standards.

These activities make the platforms active intermediaries who have created virtual spaces where participants can be both speakers and listeners.

The Eleventh Circuit views content moderation as curation that promotes the creation and development of niches and communities, and promotes values and points of view.

Why Florida Sought Legislative Intervention. Florida’s social media legislation was intended to address perceived silencing of conservative views by technology ‘oligarchs’.

Florida perceives social media platforms to be akin to public utilities which, as common carriers, are to remain accessible to all and to viewpoints.

Sweeping and Problematic. The Eleventh Circuit notes that Florida’s law, while aimed at “big tech oligarchs,” as defined by size and revenue, does sweep in smaller sites, such as Wikipedia and Etsy. An initial specific exclusion of Disney Corporation was repealed.

Three features of the Florida legislation are problematic, in the appellate court’s view: content moderation, disclosure obligations, and user data retention.

Strict in Theory, Fatal in Fact. The Eleventh Circuit perceives that Florida’s legislation regulates speech within the meaning of the First Amendment, and its content moderation provisions are subject to strict scrutiny, making it unlikely the legislation will survive.

Pre-Emption Awaits Another Day. As the court based its analysis on the First Amendment, it is not necessary to consider the issue of federal preemption of the Florida law by 47 U.S.C. Section 230.

Gutting Editorial Discretion. Denying social media platforms the ability to prohibit some posts, as the Florida law does, impairs the very exercise of discretion that the First Amendment prohibits, the Eleventh Circuit observes.

Not an Indiscriminate Host. The notion that by opening a social media space to some — essentially serving as a host to speakers — a social media enterprise must open that speech to all, following historic decisions, failed to persuade the Eleventh Circuit with respect to the Florida legislation.

Social Media’s Own Speech. If the issue of mandating open doors and open access were not enough to impair the social media companies’ editorial discretion, and by extension, their First Amendment rights, the Florida law, in the court’s view, impedes the platforms’ capacity to exercise their own speech rights.

Common Carrier Analogy Fails. Seeking to minimize the impact of First Amendment review, the state has relied heavily on the notion that social media platforms are common carriers indefensible to society, an idea rejected by the Eleventh Circuit notwithstanding that the court was uncertain whether the state asserts that the common carrier status has already been attained or whether the state would legislate that status into existence.

Social media platforms do not behave as common carriers available to all to transmit communications of their own choosing, the Eleventh Circuit observes. Social media platforms may appear to be open to all but in fact users must accept the platforms’ terms and community standards. Moreover, Supreme Court opinions have not considered cable operators to be common carriers, and the Court has declined to place online media on the same footing as broadcast media for supervisory and regulatory purposes.

The Eleventh Circuit sees that online platforms as analogous to cable providers that retain editorial discretion over their offerings.

Finally, Congress has specifically distinguished and exempted internet services form other communications media in the Telecommunications Act of 1996 and within the same legislation has protected social media from liability for publication in ways not extended to common carriers that must serve all, the Eleventh Circuit reasoned.

What Part of “Constitutional Guarantees” Did Florida Not Understand? If the social media platforms are not already common carriers, which the appellate court finds they are not, the state possesses no power to legislate the platforms’ First Amendment rights out of existence by nomenclature. Even if the social media platforms’ vast market powers suggest that they ought to be treated as common carriers, this would not carry the day. Legislation cannot create in social media the fundamental characteristics inherent in and required of common carriers to hold themselves out to the entirely of the public, without exception. While some entitles may come to be a means of rendering services of public interest, marketplace success in itself will not compel forfeiture of First Amendment rights.

The exercise of expressive editorial judgment by the social media platforms means that those platforms are not common carriers. Any imposition of limits on their First Amendment rights must survive strict scrutiny, which, with some exceptions, is not the case with Florida’s law.

The Nature of the Violations. Florida’s law would restrict editorial judgment through forbidding de-platforming political candidates, manipulating the presentation of content by or about candidates, and censoring or manipulating journalistic enterprises. Legislatively requiring consistency in decision- making and imposing time limits on restrictions present similar, if less obvious, impositions on social media platforms.

Permitting users to opt out of the platforms’ curation would interfere with the editorial processes and discretion exercise by the platforms to those users.

Compelled disclosures of platform activities inherently burden editorial judgment, but such commercial disclosures are subject to lesser scrutiny.

The Eleventh Circuit finds no First Amendment issues arise with respect to requiring platforms to permit users to access their stored records for at least sixty days after de-platforming.

Gimlet Eye or Casual Glance: Standards of Review. Content based speech regulations must survive strict scrutiny. While the state has admitted that the aim of its legislation is to address perceived mistreatment of conservatives and conservative views, this does not persuade the Eleventh Circuit to adopt the technology associations’ argument that this causes the entirety of the legislation to fail.

The state’s motivation in enacting legislation is not outcome determinative in review of an otherwise facially constitutional law. Moreover, the applicability of the law to some social media platforms and not others, while of concern, is insufficient to condemn the legislation in its entirety.

The Eleventh Circuit’s Reasoning. The appellate panel has concluded that NetChoice and CCIA may succeed on the merits of their content moderation claims. As some provisions refer specifically to content messaging, those trigger strict scrutiny, whereas de-platforming and opt-outs are neutral.

The “consistency” demanded of the social media platforms partakes both of content-based and neutral regulation. Because at their core they involve expressive activity, intermediary scrutiny is triggered, but even at that level, they are not likely to survive.

Disclosure of factual information in commercial settings need not meet even intermediate scrutiny, and may be reviewed on a rational relationship basis, making those regulations likely to survive.

The Eleventh Circuit has concluded that none of the content moderation measures would survive intermediate scrutiny and that the ‘explanatory’ disclosure requirements — why decisions were made — is likely unconstitutional. However,there is no likelihood of success on the merits of the rest of the legislation.

When intermediate scrutiny is applied to the legislation’s content moderation restrictions, the court is asked to consider whether the content moderation restrictions are narrowly drawn, that is, no greater than is essential, to further a substantial government interest unrelated to speech suppression.

The content moderation restrictions do not, in the court’s view, further any substantial government interest, which does not seem to have been seriously argued by the state. (Slip op. at 53.)

While it might be that the state, had they pursued such arguments, would claim an interest in curtailing private censorship, or in fostering use of of the internet, the government has no interest in “leveling the expressive playing field,” nor may it intervene where there is no right to a social media account.

The idea of restricting the speech of some to enlarge the voices of others is “wholly foreign to the First Amendment,” the Eleventh Circuit has concluded. (Slip op. at 59, quoting Buckley v. Valeo, 424, U.S. 1, 48-49 (1976)).

The assertion of a state interest in “promoting the widespread dissemination of information from a multiplicity of sources” would fail, as social media platforms do not act as gatekeepers, exercising control over most or all information. (Slip. Op. at 49, quoting Turning Broadcasting System v. FCC, 512 U.S. 622, 662 (1994).) A wealth of communications resources exist and are available to speakers Even if they are not of the magnitude of the social media platforms, this does not justify inhibiting the speech rights of private social media companies as the Florida law would do.

Moreover, the appellate court thinks it unlikely that the government has an interest in private utilities’ consistent application of rules or in prohibiting users from changing messages within certain time frames, in addressing sequencing of content, or in permitting or precluding participation in these processes.

Even if a substantial government interest were found, there is little likelihood that the preclusive restrictions and mandated activities are “no greater than is essential to the furtherance of interests.” (Slip op. at 61, citing United States v. O’Brien, 391 U.S. 367, 377 (1968).

Prohibitions on “deplatforming, deprioritizing, or shadow-banning” would make it impossible to address obscenities or terrorist threats, and indeed raises the specter of minors’ access to pornography. (Slip op. at 62). This wide a sweep stands the narrowness constraints applicable to legislation of speech regulations on its head, the court concludes.

Compelled disclosures. Disclosure requirements will survive constitutional scrutiny if as commercial speech they are related to protection of consumers, which is a recognized state interest, and are not unjustified or unduly burdensome, effectively chilling protected speech. (Slip op. at 63, citing Milavetz, Gallop & Milavetz v. United States, 559 U.S. 229, 250 (2010).

An exception to the likely unconstitutional disclosure requirements is requiring that information be provided to consumers about the terms of access to the platform and that the content moderation policies are not misleading. The court observed that there has not been a sufficient showing that publications of standards or that providing information about rules changes, views, and advertising information would be unduly burdensome.

The court has agreed with NetChoice that requiring detailed justification for and notice of each content moderation is likely unconstitutional even under commercial speech standards. The time constraints, compliance burdens, and prohibitive fines for insufficient “thoroughness” compound those burdens.

And in Conclusion. The remaining factors requiring review to substantiate injunctive relief are easily met, the Eleventh Circuit has determined. Ongoing First Amendment violations are presumptively irreparably harmful, and neither the state nor the public has any interest in enforcing an unconstitutional statute.

The district court’s order will be upheld in part and vacated in part, and the case remanded.

WHERE MATTERS STAND. JustLawful is not sage enough to know what the Supreme Court will do now that there is an apparent, if only partially articulated, conflict between two federal circuit courts of appeal. Others’ prognostications are welcomed.

In a Nutshell. Here is a link to the Eleventh Circuit’s synopsis of its parsing of the Florida statute.

Summary 11th Cir. Opinion

And in Full:

Here is the entire opinion.

NetChoice v. Florida No. 21-12355 (11th Cir.) Opinion May 23, 2022

 

Social Media Platforms Resist Regulation as Electronic Public Squares, Seeking U.S. Supreme Court Intervention in Ongoing Federal Appellate Litigation Against Texas

Netchoice, LLC and Computer and Communications Industry Association v. Ken Paxton, Attorney General of Texas, No. 21A720 (U.S. Supreme Court). Emergency Application filed May 13, 2022


When the state of Texas passed legislation that would limit the ability of internet social media sites such as Facebook, Twitter, YouTube and others to remove or to ban content the sites deemed undesirable or outside the private companies’ internal rules and user agreements, those companies immediately sought to enjoin the legislation, arguing that Texas’s bill violates the corporations First Amendment rights, including but not limited to exercising editorial discretion over content provided by others. 

The associations advocating for the social media sites successfully obtained an injunction halting the operation of the Texas law.  Recently the United States Court of Appeals, without issuing an opinion detailing its reasoning, stayed the operation of the injunction, prompting the associations to seek the United States’ Supreme Court’s intervention to vacate the appellate court’s order.

Texas, by its Attorney General, observes that the massive online presences of social media sites has caused them to become modern public squares and, as such, when a site its open to some views, it must be open to all.  Alternatively, Texas asserts that the platforms’ conduct may be regulated much as the conduct of common carries is, and that it is not speech but the act of removal of content or banning of posts or accounts that is open to statutory intervention without concern for the First Amendment. 

Social media sites strenuously resist being required to offer appeals from removal of content or banning of accounts, and complain that that reporting requirements imposed by Texas are overwhelming.  The companies state that compliance with Texas’s regime would be prohibitively costly and would require remaking of the corporations business methods, actions which would take a decade to accomplish.

The sites are extremely concerned because active operation of the Texas legislation will impact all operations throughout the United States. 

The petitioning associations enjoy the support of more than a dozen industry-related entities, First Amendment advocates, and others with interest in online activity.

Texas, by comparison, is supported by other states and a few critical voices.

The timing of issuance of a decision on the emergency petition, addressed to Justice Alito as justice for the Fifth Circuit, but in light of the stringent briefing deadline imposed on the parties, it may be that a decision will be forthcoming very soon.

The legislation in issue:

Text of Texas H.B. 20

The emergency petition, Texas’s opposition, and petitioners’ reply:

21A720 Supreme Court Vacatur Application

21A720 Response to Application

21A720 Reply in Support of Emergency Application

Amicus Submissions for Applicants:

21A720 Amicus Brief of Christopher Cox

21A270 Amicus Brief of Reporters Committee for Freedom of the Press, et al.

21A720 Amicus Brief of Professor Eric Goldman

21A720 Amicus Brief of Floor64 d/b/a/Copia Institute

21A720 Amicus Brief of Center for Democracy and Technology, et al.

21A720 Amicus Brief of TechFreedom

21A720 Amicus Brief of Chamber of Progress, et al.

21A720 Amicus Brief of The Cato Institute

Amicus Submissions for Respondent:

21A720 Amicus Brief of Philip Hamburger, et al.

21A720 Amicus Brief of Florida and 11 Other States

 

 

 

 

 

 

 

 

Absent Administrative Notice and Comment, Amici Affected by the OSHA Vaccine Mandate Present Submissions to the U.S. Supreme Court Explaining Their Views


National Federation of Independent Businesses v. Department of Labor, No. 21A244,  consolidated with Ohio v. U.S. Department of Labor, No. 21A247. Oral Argument on  Applications for Emergency Stay of OSHA Vaccine Mandate set for Friday, January 7, 2022.

Biden v. Missouri, No. 21A240, consolidated with Becerra v. Louisiana, No. 21A241.  Oral Argument on Challenges to Stays of CMS Vaccine Mandate set for Friday, January 7, 2022. 


The principal parties will be heard on Friday, January 7, 2022 concerning whether the U.S. Supreme Court ought to intervene to stop the implementation of the U.S. Department of Labor, Occupational Health and Safety Administration (OSHA) Emergency Temporary Standard (ETS) mandating vaccination against the Covid-19 virus or testing/masking for all employers with more than one hundred employees.  Immediately thereafter, the Court will hear arguments concerning whether to dissolve stays imposed to halt the effect of a Centers for Medicare and Medicaid Services (CMS) Rule requiring vaccination of health care workers in federally supported settings.

The parties are also seeking certiorari before judgment in their respective cases.  Whether the Court will reach that issue at the same time that it addresses preliminary relief is not known.

What is known is that just as vaccination has engendered controversy nationally, interest groups, advocates, elected leaders, former officials, and professional associations have seized the occasion to submit their views to the U.S. Supreme Court in amicus briefs.

In broad brush, proponents of a stay of the OSHA vaccine mandate argue that OSHA does not have the authority to implement such a measure.  In the absence of explicit Congressional delegation of authority, OSHA cannot act outside known statutory parameters without clearly articulated guidance.  In addition, proponents of a stay assert that OSHA has no public health authority, as that is a police power reserved to the states.  OSHA has no authority to act on an emergency basiss where no emergency exists.  To like effect, OSHA erred in failing to permit notice and comment concerning its proposed vaccine mandate, as no actual emergency presenting a grave danger that requires intervention and excuses notice and comment exist.  

Proponents of a stay of the OSHA vaccine mandate argue that vaccination is ineffective concerning transmission of the Covid-19 virus and that the ‘vaccination’ itself is actually a gene-modifying medical treatment. 

In addition to the sweep of the OSHA measure, the federal intrusion on constitutionally protected individual interests in both bodily integrity and consent to medical treatment are implicated, requiring a hard look in advance of implementation.  

Finally, and not insignificantly, one amicus suggests that the imposition of vaccination or testing and masking measures within workplaces will precipitate medical segregation, an adverse social consequence. 

Those who applaud the arrival of the OSHA mandate assert that the Covid-19 pandemic is the most deadly viral infection event in U.S. history and that the workplace is a petri dish for contamination, making vaccination or masking and testing a valid first line of defense.  Some amici fear that if the mandate is not implemented, the consequences will spill over to their businesses to dismal effect. 

Presented below are thumbnails of the various amicus submissions concerning the OSHA vaccine mandate.  While the CMS Rule requiring health care provider vaccination is of great importance, limitations of time and space prevent development of those arguments here. 

 


 

Advancing American Freedom in Support of Applications for Stay or Injunction Pending Review

Advancing American Freedom in Support of Applications for Stay or Injunction Pending Review

These advocates for traditional values oppose the encroachment of the federal judgment and the administrative state.  There are grave dangers inherent in governmental invocation of emergency measures, particularly where, as here, the vaccine mandate does not address an emergency but presents a “work around” to avoid the necessity of Congressional action and/or administrative notice and comment.  OSHA’s emergency powers are to be used sparingly, and even as such, only one survived judicial challenge.  


 

America’s Frontline Doctors as Amicus Curiae in Support of Applicant

America’s Frontline Doctors as Amicus Curiae in Support of Applicants

Member physicians do not believe the vaccines prevent the spread of Covid-19, and, as result, there exists no basis for segregation of the vaccinated and the unvaccinated.  

The current vaccines are mischaracterized as such.  They are gene-modifying treatments that may reduce symptoms. 

The proper legal analysis should be derived from the strict scrutiny considerations of personal rights to refuse medical treatment.  The OSHA mandate would not survive such analysis, as it is not narrowly tailored to serve a compelling state interest.  They do not inhibit contagion, and thus do not serve the arguably compelling state interest in public health.  And the vaccine mandate is not narrowly tailored as the treatments do not consider risk factors or natural immunity.  There is evidence that natural immunity confers a long term benefit and there are also newly developed treatments to assist in addressing the virus.  


 

American Medical Association, et al.as Amici in Opposition to Applications for Stay 

American Medical Association, et al. as Amici in Opposition to Applications for Stay

These established medical professional associations perceive a severe risk to public health through higher workplace transmissions.  Vaccination can reduce the risk of contraction of the virus, result in less severe cases of illness, and less contagion. 

Testing offers no greater protection than nothing at all.  Masking may be helpful, but is not as good as vaccination. 


 

American Public Health Association, et al. as Amici in Support of Respondents

American Public Health Association, et al. as Amici in Support of Respondents

Public health associations observe that airborne viruses make the workplace particularly hazardous.  Covid-19 mortality is higher for in-person workers.  

Vaccination provides some insulation against transmission.  Moreover, vaccination diminishes transmission and therefore, mutation. 


 

Center for Medical Freedom, et al. as Amici in Support of Applicants

Center for Medical Freedom, et al. as Amici in Support of Applicants

Conservative groups opine that the vaccine mandate is”exactly what the Framers most feared when they established the federal government:  a raw exercise of arbitrary power.”  (Amicus Brief, p. 3).  

OSHA is a child of the commerce clause. There is no authority to regulate anything i the absence of commerce, and the impact of inaction on commerce is not a valid premise for commerce clause legislation.  

Reliance on Jacobson is misplaced, a statue measure was in issue there and as more than a century of subsequent law has been amassed, placing Jacobson’s vitality in question, and this is particularly so where Jacobson was conceived during the ascendancy of the eugenics movement. 

Justice Gorsuch has already rejected Jacobson as a premise for emergency extra-constitutional federal health measures.  

There is no federal police power that would support a vaccine mandate.  

Moreover, the premics of the mandate is flawed, as it is false to say the unvaccinated cause the pandemic.

Death attributable to the Covid-19 vaccines, which are ene therapy, suggest the vaccines themselves present substantial hazards.  

Separation of powers principles caution against implementation of the sort the OSHA vaccine mandate contemplates. 


 

Constitutional Accountability Center as Amicus Curiae in Opposition to Applications for Stay or Injunction Pending Review

Constitutional Accountability Center as Amicus Curaie in Opposition to Applications for Stay 

This progressive think tank and advocacy center submits that delegation with intelligible, principled guidance is appropriate, and that here that intelligible and principled guidance is found in the directive that OSHA may issue emergency orders where necessary to address a grave danger.  

Just because a measure is broad, this does not mean it is unintelligible.  Where such guidance has been provided, there should be no second-guessing agency action. 


 

Defending the Republic in Support of Emergency Applications for Stay or Injunction Pending Certiorari

Defending the Republic as Amicus Support Applications for Stay

Defending the Republic is engaged in challenging the vaccine mandate applicable to the Department of Defense, arguing that the mandate presents unconstitutional infringements on religious freedoms and the right to refuse medical treatment. 

The vaccine mandates represent unprecedented federal usurpations of power.  Nearly the entirety of the adult federal workforce is being conscripted to receive an experimental and irreversible medical treatment.  


 

Former OSHA Administrators Charles Jeffress, David Michaels, and Gerard Scannell as Amici in Opposition to Emergency Applications for Stay(or Injunction) Pending Certiorari Review

Former OSHA Administrators in Opposition to Applications for Stay

Three former Occupational Safety and Health Administration officials oppose a stay of the OSHA vaccine mandate, as it would impede implementation of measures intended to stop Covid-19.  

OSHA may regulate exposure to workplace hazards, including communicable disease, and may develop measures for immunization with religious exemptions.  OSHA can include the impact of workplace hazards on families, and has responded to concerns with bloodborne illnesses, hazardous waste, and respiratory conditions.  

Where the Secretary acts within statutory authorization, Chevon deference should be the norm.  

Simply because a condition exists outside the workplace does not mean that OSHA cannot address the condition within the workplace.  


 

IU Family for Choice, Not Mandates, Inc. in Support of Applicants

IU Family for Choice, Not Mandates, Inc. in Support of Applicants

An Indiana university coalition advocates for medical autonomy within the university community.  The group supports freedom of choice and opposes medical segregation or discrimination regarding access to education, employment, housing and community events.  

Covid-19 vaccines do not prevent infection and transmission.  The vaccines are better considered to be medical treatments ameliorating more serious aspects of Covid-19, but they are not a public health measure.  

OSHA does not have the authority to require unwanted medical treatment.  It is noteworthy that the Centers for Disease Control changed the definition of”vaccine” to conform to Covid-19 therapeutics. 

The OSHA Emergency Temporary Standard violates principles of bioethics concerning autonomy and choice in medical treatment.  

OSHA does not have police powers.  The states, not federal agencies, have police powers and those police powers are bound by the Constitution.  

OSHA cannot force the test/vaccine choice on the employee and pre-enforcement review requires a ‘harder look’ at such a measure.  Rigorous scrutiny is required where medical autonomy and consent are in issue.

Jacobson does not apply here because the OSHA mandate concerns a medical treatment, not a public health measure.  

A personal decision to refuse a medical treatment does not create a risk to others to whom disease might spread.  Refusal only impacts the person who refuses. 

The presupposition that vaccines would slow the spread of disease is in error.  


 

Jason Feliciano and the International Conference of Evangelical Chaplain Endorsers as Amicus in Support of Applications for Stay or Injunction

Jason Feliciano and the International Conference of Evangelical Chaplain Endorsers as Amicus in Support of Applications for Stay or Injunction

The individual and organizational amici provide credentialing for chaplains in the military.  The organization exists to promote religious free exercise.  

Amicus objects to the OSHA vaccine mandate as it is not a true vaccine, as the overwhelming survival rate of persons with Covid-19 infections suggests that there is no grave hazard, and as the mandate fails to consider religious concerns. OSHA does not have authority to impose measures where there is no hazard.  This is particularly problematic where the proposed measure does not inhibit transmission or contraction of the Covid-19 virus and associated illness.  Moreover, the fact that the Centers for Disease Control changed the definition of ‘vaccine’ to include the current injections is problematic.  

Those who resist vaccination are subject to punishment, either in the form of loss of their livelihoods, or, if masking and testing is chosen, in the form of fines, as the individual employee must bear the not insignificant costs of testing.  Further, testing does not provide valid information about contagion and thus is not helpful in curbing disease transmission, and a distinction between testing unvaccinated versus vaccinated individuals makes no sense, as both unvaccinated and vaccinated persons can transmit the Covid-19 virus.

Finally, the social costs of the vaccine mandate are difficult to calculate, as the mandate may usher in an era of medical segregation in which the vaccinated obtain a status superior to those who are not vaccinated.  


 

Liberty, Life and Law Foundation as Amicus in Support of Applicants

Liberty, Life and Law Foundation as Amicus in Support of Applicants

Concerned with constitutional liberties in the context of expanding federal powers, amicus foundation asserts that Jacobson was not a blank check.  Jacobson v. Massachusetts, 197 U.S. 11 (1905).  Congress must use especially clear language where, as here, Congress intends to upset the balance between federal and state powers.

Emergencies cannot be pretexts for denials of civil liberties and usurpation of powers.  The measures in issue raise concerns about bodily integrity, informed consent, and refusal of medical treatment.  

Jacobson was a narrow ruling which recognized the potential for government overreach.  Current analysis should require a compelling government interest.  Even if a compelling government interest could be found, the government has not chosen the least intrusive means of serving that interest.  


 

Local Unions 1249 and 97 of the International Brotherhood of Electrical Workers in Support of Emergency Applications for a Stay Pending Certiorari Review  

Local Unions 1249 and 97 of the International Brotherhood of Electrical Workers in Support of Emergency Applications for a Stay Pending Certiorari Review 

The electrical workers’ unions think that unvaccinated members should not be forced to choose between vaccination and supporting their families.  The vaccine mandate is well outside OSHA’s traditional bailiwick.

Unions can work with management quite effectively to develop Covid-19 policy.  Particularly as the virus and infections will change over time, it is preferable to allow for hands on negotiation rather than to accept top-down demands. 

Traditionally, OSHA does not regulate employers and employees.  Here, there are significant personal cost consequences to employees and a demand that employees subite to an irreversible medical procedure that affects the individual both when working and when not working. 

Although it is true that a hazard need not be solely a workplace hazard for regulation to be proper, the federal government does not routinely impose costs on employees.  


 

Members of Congress as Amici Curiae in Support of Applicants

Members of Congress as Amici Curiae in Support of Applicants

One hundred eighty three members of both houses of Congress fer the disregard of separation of powers principles that th eOSHA vaccine mandate represents.  Congress has not authorized OSHA’s action:  theser exist no deletion of power nor an intelligible principle to support delegation of power to OSHA.  Public health care does not fall within OSHA”s emergency powers, yet OSHA wants to expand those powers outside the workplace.  There is no grave danger that OSHA might address nor is a virus a toxic or hazardous agent as contemplated in the OSHA act.  

The vaccine mandate lacks the ‘necessity’ the OSHA statute requires and the measure itself does not inhibit contagion and contamination.  A rule that does nothing to address a (non-extant) grave danger is not a measure that is “necessary,” as the OSHA statute contemplates.

Equally problematic is the absence of any limiting principles application to ASHA’s actions, which gives rise to non-delegation concerns.  The purpose of reducing the number of unvaccinated individuals on its face exceeds OSHA”s jurisdiction to regulate some workplace safety concerns.  And even if there were authority to act, the failure of Congress to state clearly the principles to guide OSHA causes ‘major questions’ doctrine problems as the vaccine mandate upsets the federal – state power balance. 


 

National Disability Rights Network and the Judge David L. Bazelon Mental Health Law Center as Amici in Opposition to Applications for Stay 

National Disability Rights Network and the Judge David L. Bazelon Mental Health Law Center as Amici in Opposition to Applications for Stay 

Advocates for the physically and mentally disabled support the OSHA Emergency Temporary Standard because, they assert, the physically and mentally disapbled are particularly vulnerable to Covid-19 workplace infection, and face higher mortality rates if they are infected.  Those who refuse vaccination or refusing masking and testing present a new workplace hazard.   Studies suggest that the Emergency Temporary Standard is a necessary measure in mitigation.  Enjoying the Emergency Temporary Standard would disproportionately affect medically vulnerable and disabled persons. 


 

National Employment Lawyers Association and Jobs with Justice Education Fund in Opposition to Emergency Applications for a Stay or Injunction Pending Review

National Employment Lawyers Association and Jobs with Justice Education Foundation Amicus Brief

Acceptance of petitioners’ arguments would open many existing workplace regulations to challenge.

If workers are given a liberty interest superseding federal regulatory powers, then workers may refuse to work. 

The federal government has regulated workplaces in the past, i.e., with drug testing, permitting physical qualifications for work, mandating retirement, and regulating the use of hard hats or the advisability of beards.

With respect to major questions, judicial line drawing between major and minor issues is not committed to the judicial branch.

Petitioners’ Commerce Clause argument would invalidate all federal employment legislation.  It is well established that federal regulation may be applied to noneconomic activity with economic consequences.  


 

Small Business Majority, et al. in Opposition to Emergency Applications for Stay or Injunction Pending Certiorari

Small Business Majority, et al. in Opposition to Emergency Applications for Stay or Injunction Pending Certiorari

Small businesses fear that a stay will cause them to lose the protections that would flow from large businesses’ compliance with the OSHA vaccine mandate.  As some states have interfered with eemployers’ efforts to require vaccination, federal intervention is needed.  


 

Standard Process, Inc. in Support of Emergency Application for Administrative Stay, Stay, and Alternative Petition for Stay Certiorari Before Judgment

Standard Process Inc. as Amicus in Support of Stay and Certiorari Before Judgment

This whole food nutritional supplementation manufacturer fears that the OSHA vaccine mandate will precipitate mass employee resignations,and that, owing to Standard Process’s rural location, those employees will not be replaced.

Testing is not accessible in the way that the government would like to believe.  Equally importantly, employer compliance costs are extraordinary and are neither private nor self-contained.  

In all, the vaccine mandate needlessly undermines both private and public interests. 


 

Texas Values, et al. as Amici n Support of Applicants

Texas Values, et al. as Amici in Support of Applicants

States’ ‘family values” policy advocates object to widespread regulation of employees without notice and comment and without proper concern for religious exercise.  The administrative state is particularly prone to disregarding religious liberty. OSHA has taken the position that employees’ religious interests are outside OSHA’s purview, but even with their ‘proper’ administrative nice, those concerns do not receive fair treatment, as employers may disregard religious concerns where addressing them would require more than de minimis costs.  The public has been denied a voice in the development of this sweeping measure, a measure which lies outside OSHA’s statutory authority.  


 

Tore Says LLC in Support of Petitioners

Tore Says LLC as Amicus in Support of Petitioners

This multimedia news outlet focuses on the thinking of the founding fathers with particular concern for the Ninth and Tenth Amendments to the U.S. Constitution.

Corporations have constitutional rights, and ought to be free from government intrusion, as the government has only those rights which are granted to it by the people.  The Ninth Amendment guarantees against federal intrusion and the Fourteenth Amendment guarantees against state intrusion. 

Because of the Ninth Amendment, there is no authority for the government intrusion that the vaccine mandate represents, but even if there were such a power to intrude, that power would be reserved to the states.  

Public health traditionally is entrusted to the states.  No federal police power exist to support the board exercise of federal powers in issue here.  


 

Washington Legal Foundation in Support of Applicants 

Washington Legal Foundation in Support of Applicants

This foundation supports free enterprise, individual rights, limited government, and the rule of law.  The vaccine mandates are causing supply chain issues and rising prices.  The vaccine mandate is not within OSHA’s authority but if it were notice and comment would be needed, not an emergency measure implemented outside ordinary procedure.  

The mandate presente employees with a forced choice between vaccination,testing, or losing employment.  

The emergency measure is odd in that in June, 2020, the U.S. Court of Appeals for the District of Columbia Circuit observed that OSHA need not issue a mandate.  This is all the more curious because the nation is more than one year, and closer to two years, beyond the inception of the pandemic, and the government wants to use an ‘emergency’ measure.

This is a fitting case for granting certiorari before judgment, given the time constraints presented by the Emergency Temporary Standard, which will expire by its terms in six months.  


 

We the Patriots USA in Support of Emergency Applications for Stay or Injunction Pending Review and for Certiorari Before Judgment

We the Patriots USA in Support of Emergency Applications for Stay or Injunction Pending Review and for Certiorari Before Judgment

This group defines itself as promoting constitutional rights and offers that the vaccine mandate represents the largest disruption of personal choice and bodily integrity in history.  

Since Jacobson, substantive due process rights have developed in recognition of individual fundamental unenumerated rights under the Fourteenth Amendment.  

Tiers of tests for unenumerated rights have been inconsistently applied, sometimes utilizing strict scrutiny, and sometimes not, depending on whether bodily integrity or self-determination is in issue.  Abortion is recognized as a fundamental right, while refusal of medical treatment requires balancing of personal and state interests, with the scales favoring the state.  This uneven treatment of similar questions needs to be addressed.  

The vaccination or testing/masking alternatives are not true alternatives because the costs of testing, which must be borne by employees, are so prohibitive that the average employee is forced to submit to vaccination.  

The Commerce Clause concerns economic issues only and is not concerned with non-economic public health activity, which belongs to the states.  

It is not proper to characterize any skepticism concerning the vaccines as an “anti-vax” position.  The reliance on inconsistent statements of “experts” about Covid-19 is of great concern.  

The OSHA vaccine mandate is a major question because mandatory medical treatment for vast portions of the population is a major political and economic question.

State power to administer public health measures should be retained.  The regulation of containment and remediation of viral transmission is a state matter, but in any case the regulation of a virus is not a regulation of activity within the Commerce Clause.

Upholding the vaccine mandate would open the door to unprecedented federal regulation of public health questions.  

Federal Court Enjoins Enforcement of Mandated COVID-19 Vaccination of Healthcare Workers, Observing Not Only Authoritative and Procedural Deficiencies in CMS Order But Also Likelihood that Enforcement Would Exacerbate Crisis in Healthcare Access


Missouri, et al. v. Biden, et al., No. 4:21-cv-01329 (E.D. Mo.)  Order and Opinion entered November 29, 2021.

Missouri, et al. v. Biden, et al., No. 4:21-cv-01329 (E.D. Mo.) Defendants’ Notice of Appeal filed November 30, 2021.


The United States District Court for the Eastern District of Missouri has enjoined the federal government from implementing mandated COVID-19 vaccination for healthcare providers and other workers associated with facilities receiving Medicare or Medicaid support.  The United States has filed a notice of appeal from the injunction ordered on November 29th.

The federal trial court observes that the Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS), lacks Congressional authority for the actions it has taken, which because of its sweep would require explicit and clear authority if it authority could be delegated at all in light of the federalism question that the federal intrusion on private citizens’ health care decisions and the disruption of federal-state balance that the vaccine mandate present.  

Moreover, CMS erred in abandoning notice and requirement provisions, as no excuse for having done so, including any alleged emergency, can be found.

Of particular significance to the court is not merely the shift from encouraging to demanding vaccination of healthcare workers and the application of a one-size-fits-all policy without respect to the institution involved but also the threat to access to care that the mandate provides.

Provider institutions already face a shortage in workers that began before but has been compounded by the COVID-19 pandemic. As mandated vaccination may precipitate additional worker shortages, which in turn will impact access to care, the court agrees that the threat of harm to the public because of mandated vaccination merits injunctive relief.

Missouri, et al. v. Biden, et al., No. 4:21-cv-01329 (E.D. Mo.) Order and Opinion November 29, 2021

Missouri, et al. v. Biden, et al., No. 4:21-cv-01329 (E.D. Mo.) Notice of Appeal filed November 30, 2021

Having Twice Failed to Uproot the Stay that Keeps the CDC Eviction Moratorium in Place, Realtors Association Again Seeks Emergency Relief in the U.S. Supreme Court

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, No. 21A23.  Application to vacate stay submitted on August 20, 2021.  Government to respond by noon on August 23, 2021.


Applicants Alabama Association of Realtors have filed in the United States Supreme Court an application for emergency relief which would vacate the U.S. District Court’s May 14, 2021 stay of its May 5th order vacating the Center for Disease Control (CDC) moratorium on evictions.

The emergency application was submitted the same day that the United States Court of Appeals for the District of Columbia Circuit denied relief from the stay for the second time.

Applicants argue that not only has the United States District Court for the District of Columbia found the CDC eviction moratoria to be unconstitutional, but also that the executive branch has admitted this to be true, but has nonetheless encouraged litigation as a delay tactic in the hope of distributing billions in rental assistance monies through the states.  

When the initial series of eviction orders lapsed on July 31, 2021, Congress failed to specifically authorize the CDC to exercise the power that it has, which legislative action Associate Justice Kavanaugh opined would be needed going forward when he denied review only because the government promised the Court that the eviction orders would end on July 31, 2021.  As this was clearly not the case, relief is now warranted, the applicants submit.

Permitting the stay to remain in place would undermine confidence in the federal government internally and in the eyes of the nation, as it would allow legislative inaction to promote admittedly unconstitutional administrative action and let the Court know its views are of no consequence.

The ongoing presence of a federal moratorium represents both an assault on the integrity of the system of government itself but also a tectonic shift in the exercise of powers affecting the rights and interests of property owners.  The eviction moratorium has been promulgated by a sovereign which is immune from suit and which will resist takings actions, provides benefits to those who are admittedly judgement-proof, and criminalizes landlords’ actions to protect their property through eviction proceedings.  Any financial benefit, in the form of rental assistance, has been lost in bogs of state bureaucracies charged with distributing the funds.

The realtors association argues that the same factors that warranted emergency relief that were present before are present now and then some.  Any reliance on ‘changed conditions’ manifested by the Delta variant of the Covid-19 virus is misplaced, as the government was aware of the Delta variant when it permitted the CDC order to lapse on July 31, 2021, and the harms predicted from the variant have failed to materialize.

The applicants note that the idea that money damages will make landlords whole is not supported in law or fact.  The Administrative Procedures Act does not permit an award of money damages, and the costs of compliance with an unlawful regulatory regimen are incapable of being fairly compensated. 

 

Alabama Association of Realtors, et al. v. HHS, No. 21A23 Application for Emergency Relief August 20, 2021