A Fifth Circuit panel on Tuesday gave red states a win on barring additional government agencies from flagging misinformation to social media companies — a week after it accidentally published an order in error that arrived at a similar result.
It looped in an additional government agency — the Cybersecurity and Infrastructure Security Agency — under its preliminary injunction.
The panel had, last week, initially granted the red states’ petition for a rehearing — after already handing down a very favorable ruling for those states — without giving the government a chance to respond. That’s both unusual and seemed to run afoul of the federal rules that govern the court.
The U.S. solicitor general said as much in a scathing filing at the Supreme Court, where the case has already been appealed.
The next day, the 5th Circuit panel reversed course, withdrawing the order and setting a date for the government to respond.
TPM was first to report that the withdrawal was to correct a “clerical error.”
“The order today cures a clerical error made by my staff,” Clerk Lyle Cayce said in an email at the time. “The court intended yesterday only to permit the filing of a motion for panel rehearing — but the order we entered made it appear that a rehearing was granted. That was erroneous and not in accordance with direction.”
The snafu was a very rare one on this level.
“Unusual to be sure. I can’t recall something like this,” said Greg Sisk, a law professor at the University of St. Thomas and former appellate specialist at the Justice Department.
But it doesn’t seem to have changed the course of events. The red states and handful of individuals still got more government muzzling. The panel accepted the states’ arguments on CISA, though it did not include the State Department — the other additional agency the red states wanted barred — in its preliminary injunction.
The Biden administration, meanwhile, is still battling for a prolonged stay of the 5th Circuit’s initial ruling at the Supreme Court. The docket there has turned into a blizzard of correspondence, as the states keep the justices up to date with the bizarre goings on at the appellate court. The 5th Circuit panel stayed the preliminary injunction for 10 days from Tuesday’s order, presumably now clearing the way for the Supreme Court to act on the administration’s request.
Read the order here: