Government defends stay motion to Fifth Circuit

Three days ago, the federal government, appealing the preliminary injunction in Missouri v. Biden, replied to a brief in opposition to the emergency motion for a stay. The next day, they filed their primary brief, which was due that day. Yesterday reporter Tracy Beanz broke the brief down, Twitter Files style, for the benefit of the people.

The government defends censorship

The case of Missouri v. Biden is now before a district court and an appeals court. Because the plaintiffs filed in Louisiana, it is before the Fifth Circuit Court of Appeals. To review: Judge Terry A. Doughty issued a preliminary injunction against the government on July 4. The government appealed, and tried to make the injunction go away. First they filed in the district court; Judge Doughty denied their motion. They also filed an emergency motion for stay pending appeal at the Fifth Circuit.

The Fifth Circuit has granted an administrative stay, and also expedited the appeal. Deadlines have been tight, but the government has met them. (The plaintiffs filed their brief in opposition more than two weeks ahead of time.) From the government, the Fifth Circuit has two briefs:

• Brief in reply to the plaintiffs’ brief, and
• Their own primary brief, on the very day it was due, but after all other briefs came in to the court.

That primary brief argues that the plaintiffs should lose, for lack of standing and failure to state an actionable claim. Furthermore they deny any irreparable harm to plaintiffs and plead irreparable harm to the government. Finally the government argues that the injunction is nonspecific.

The thread

Herewith the ten-tweet thread, as the odd numbers beginning with the anchor tweet, and then the trailing tweet.

Reaction varies from Whiskey Tango Foxtrot to I Told You So. Here are some examples:

The government’s Reply to the Appellees’ Brief makes the same flawed arguments the primary brief makes, in fewer pages.

They say the Supreme Court has “recently and repeatedly rejected” Missouri and Louisiana’s parens patriae standing. They also repeat: a past injury does not by itself establish the imminent threat of future injury. Why, then, do courts routinely enjoin abusive spouses from coming near their erstwhile targets? They also said the district court did not rely on the argument that injury results from the quashing of speech to which others want to listen. True enough, the plaintiff-appellees raised that to the Fifth Circuit. But the government argues that this theory would make any First Amendment claim admissible because someone wished to hear it. The correct response is: so? What’s wrong with that?

Most tellingly, the government relies on the distinction between persuasion and prohibition. But no one was complaining that the government stifled speech merely by saying, “That’s not true.” Now the government forgets a distinction – between “That’s not true” and “You will pay the penalty for saying that.”

Perjury?

Did the government perjure itself in that brief? The government’s position in the page Ms. Beanz embedded in her last tweet is only half true. Yes, Twitter did rescind its COVID-19 Medical Misinformation Policy. They rescinded it very quietly. Now you saw it; now you didn’t. But: not only do some accounts remain on suspension, but also – and most telling to this case – a particular correspondent, who earned the respect of CNAV very rapidly for her stance on the Donbass or Russia-Ukraine War, has her account under suspension. The accountholder’s name is Jennifer Long.

In short: COVID-19 and Vaccine Misinformation is not the only ground for censorship. Anti-war sentiment, and particularly a suggestion that our government is supporting the wrong side in the Donbass War, if you grant that our government ought to support either side, isalsogrounds for suspension. Twitter, now called X, has troublemakers in its Trust and Safety Team. Furthermore, the State Department was still meeting regularly with Twitter Trust and Safety and their counterparts at other platforms. That stopped one business day after the injunction came down.

Change of administration is not a total change of government

Finally: the government asserts that some of the wrongs the plaintiffs allege, happened during the Trump administration. Yes, but Joe Biden didn’t change out all the personnel at the defendant agencies. No administration does that – except maybe the Clinton administration, like their firing of the entire White House Travel Office to get patronage slots for their friends. Maybe Joe Biden wasn’t there when the censorship began, but his friends were – at the FBI, the CIA, the CDC, the NIAID, CISA, etc. They’re more culpable even than Dominion Voting Systems for Biden being in the White House today. Remember: many voters, including Democrats, said they would never have voted for Joe Biden had they known about That Laptop.

Missouri v. Biden comes to oral argument on August 10. One wonders what other revelations will come at that session.