I’m not going to go through all the background on this story, because we just did that yesterday. If you missed that post, it will help to go read it before reading this one. I concluded that post by noting that, thanks to district court Judge Terry Doughty petulantly claiming he can’t stay an obviously problematic injunction (and nearly identical to the injunction the Supreme Court just trashed in the Murthy decision), the DOJ would likely quickly run to the Fifth Circuit to ask for the same relief.
And run they did. Before my article had even posted, the DOJ had filed an emergency motion with the Fifth Circuit asking for a stay on these issues. The motion is basically the same thing the DOJ filed in the district court, just now asking the Fifth Circuit the same thing:
The government respectfully requests a stay pending appeal of the district court’s preliminary injunction. A stay is warranted because the Supreme Court previously stayed, and ultimately reversed, an identical injunction issued by the same district court based on the same record. The Supreme Court’s decision makes clear that the government is likely to succeed on appeal, and the Supreme Court’s prior stay confirms that the equities and the public interest warrant a stay while the appeal proceeds. We request relief by July 24, 2024, to allow sufficient time for the Supreme Court to consider an application for a stay, should the Solicitor General elect to file one. We have sought plaintiffs’ position but have not received a response.
Almost immediately, RFK and his co-plaintiffs filed a “nuh uh, we’re totally different” response using the same argument they had used in the district court:
The chief difference between this action and Murthy is the identity of the plaintiffs. The Kennedy Plaintiffs have a very different, “strong claim to standing,” and Mr. Kennedy in particular, as a candidate for President, has an urgent claim to relief. Murthy v. Missouri, 144 S. Ct. 32, 32-33 (2023) (Alito, J., dissenting from denial of leave to intervene) (“Indeed, because Mr. Kennedy has been mentioned explicitly in com munications between the Government and social media platforms, he has a strong claim to standing, and the Government has not argued otherwise. Our democratic form of government is undermined if Government officials prevent a candidate for high office from communicating with voters, and such efforts are especially dangerous when the officials engaging in such conduct are answerable to a rival candidate.”).
First of all, ignoring what the majority actually said while citing the dissent of the majority is a choice. But the main thing is that the core issue still stands. If the administration were actually coercing social media companies into their moderation decisions, then perhaps the plaintiffs would have standing.
But no one — including RFK Jr. — has presented any evidence of such coercion.
And therefore, the fact that he’s a candidate for President (with no chance to win) is meaningless here.
And, yes, if the administration was actually pressuring social media companies to silence other candidates for President, RFK Jr. would have a point. But social media companies have plenty of reasons to pull down RFK Jr.’s dangerous nonsense peddling that is making kids sick by creating vaccine hesitancy and other nonsense. That’s got nothing to do with the government suppressing speech of a rival candidate, and everything to do with that candidate spewing dangerous stuff.
But, this is the Fifth Circuit, which has a history of making decisions driven by ideology more than reality. So it’s entirely possible that they reject this, and the issue quickly returns to the Supreme Court’s shadow docket, as the government is forced to seek an emergency order putting a stay on the clearly ridiculous injunction.
That would be quite fast, and while the initial request would flow up through Justice Alito (who wrote the cantankerous dissent), I could see enough Justices getting pretty pissed off that the Fifth Circuit seemed to clearly not be paying attention to what the majority was saying in its ruling regarding standing.
