Stay of injunction denied

Yesterday Judge Terry A. Doughty refused to stay his July 4 injunction against further censorship efforts by the federal government. The Biden administration has formally appealed, but the injunction will remain in full force and effect for the time being. As interested watchers expected, the government has already moved before the Fifth Circuit to stay the injunction.

Background and motions to stay

Judge Doughty, who has held many hearings for more than a year on a massive lawsuit against the government over its practice of inducing social media organs to censor content on their platforms. (Missouri v. Biden, case 3:22-cv-01213, before the U.S. District Court for the Western District of Louisiana. See here for a list of freely available documents and their links.) A week ago, of course, the judge enjoined any further such efforts. The Biden administration filed notice of appeal, then asked the judge to stay his order pending that appeal. (Or else to stay it administratively for the customary seven days.) Over the weekend, the plaintiffs filed a memorandum in opposition to that motion. (They had to resubmit it after they forgot to include tables of contents and authorities.)

Yesterday the court denied the government’s motion. The rather terse judgment said that “protected speech” essentially meant what the U.S. Supreme Court has repeatedly said it means.

“Protected free speech” means speech which is protected by the Free Speech Clause of the First Amendment to the United States Constitution in accordance with the jurisprudence of the United States Supreme Court.

It then said the motion was denied.

Tracy Beanz, editor-in-chief of UncoverDC, has covered Missouri v. Biden since its filing in May 2022. Naturally she couldn’t say anything about it on Twitter until Elon Musk bought the company and curtailed its censorship regime. On December 16, 2022, she dropped a lengthy thread, beginning with this tweet:

CNAV first published that on the occasion of Judge Doughty denying a motion to dismiss the case outright. When Judge Doughty handed down his injunction, Ms. Beanz covered that extensively, in two parts.

The thread: another memorandum ruling

As he did with his original injunction, Judge Doughty issued a Memorandum Ruling explaining his judgment on the stay motion. This document runs to thirteen pages, but then again, it doesn’t need to run longer than that.

Tracy Beanz dropped this 16-tweet thread dissecting the Memorandum Ruling:

Reaction was universally positive, except perhaps for one tweet, the author of which deleted it. The other tweets varied from judging the decision “excellent” to thanking Ms. Beanz for her reportage.

But at 4:01 p.m. EDT yesterday, Ms. Beanz noted the filing of an emergency stay motion before the Fifth Circuit Court of Appeals.

Court Listener has opened another case file page referring to arguments before the Fifth Circuit. In addition to the Notice of Appeal, one can read the Emergency Motion for Stay Pending Appeal, and this list of Exhibits to that motion. Clearly, from the Emergency Motion text, the government is ready to go all the way to the Supreme Court. (They also begin by making arguments even more ridiculous than they made before the District Court.)

The Exhibits document runs to 2011 pages, because it contains the Third Amended Complaint and many relevant documents both sides have filed with the District Court. All those documents should be available at Court Listener’s original case file page.

Analysis

Missouri v. Biden will likely be the subject of much water-cooler talk from now on. The legacy media have been noticeably silent about this case from the start. Only when The Intercept published its “thought cops” piece did most people, aside from the parties, know about the case. The first thing most people noticed, was that the government turned social media organs into State actors.

Tellingly, the social media organs (other than Twitter) that The Intercept named as State actors, are still playing that role. The only difference today might be that their Trust and Safety Teams, which had been tamely “just obeying orders,” have now become vigilance committees, taking the censorship campaign into their own hands. CNAV still questions how reluctant any of them ever were to change their Terms of Service at the government’s behest. “They made us do it” will not be a defense, any more than it was for Lt. William Calley USA at My Lai, or the Nazis at Nuremberg.

Especially since many social media companies consistently refused to engage in such censorship. You know their names: Rumble, BitChute, Brighteon, Odysee, and especially Truth Social and Gab. All these platforms do censor something – most commonly, pornography, child exploitation, animal abuse, and a few other things. None has a Community Guidelines section even remotely as complex as those of Facebook, YouTube, Spotify, and others appearing in the Intercept piece. (Even Twitter still has its large body of Rules, though Elon has quietly removed some of them.)

What next?

CNAV doesn’t expect the Emergency Motion to Stay to succeed. But no doubt the government will go to the Supreme Court. If Justice Samuel A. Alito (the supervising Justice for the Fifth Circuit) refers an emergency motion to the full Court (and the Court rules might require it), we expect the Court to deny the motion. We don’t expect to hear the vote, or anything other than an item on an Order List. (Or a Miscellaneous Order, especially if by some chance the Court comes back from recess just to hear a motion.)

But Elon Musk would do well to remove the troublemakers from his own Trust and Safety Team. Many of them have behaved like censorship vigilantes, for lack of a better term. Likewise, Meta (Facebook, Instagram), Alphabet (Google, YouTube), and Spotify (includes Pinterest) would do well to discard their complex Community Standards. (Or Guidelines, or whatever they wish to call them.) If they do not, then they face competition – and perhaps another antitrust lawsuit.