The Fifth Circuit Court of Appeals gave red states another bite at the apple Monday in a major social media case that badly hamstrung the Biden administration’s efforts to confront misinformation.
In a big win for the red state plaintiffs, the three-judge panel had already found that the FBI, White House, Surgeon General and CDC unconstitutionally “coerced” social media companies into taking down posts that spread misinformation, particularly during the COVID-19 pandemic. The panel aggressively curtailed lawful communication between those government entities and the tech companies that own the big social media sites.
But their initial ruling didn’t give the red state plaintiffs everything they wanted, and that wasn’t good enough for the Missouri and Louisiana officials leading the charge. Late last week, they asked the judges to rehear the case, hoping that another couple government agencies — the State Department and Cybersecurity and Infrastructure Security Agency — would get wrapped into that communication ban as well.
In agreeing to rehear the case while the Biden administration is already appealing their earlier ruling to the Supreme Court, the judges showed extraordinary latitude to the right-wing litigants in a case that has astounded First Amendment and social media experts.
“Plaintiffs accept and agree with the vast majority of the Court’s opinion and analysis, but they respectfully submit that this Court overlooked or misapprehended material points of fact relevant to the injunction against the Cybersecurity and Infrastructure Security Agency (“CISA”), the State Department’s Global Engagement Center (“GEC”), and the Election Integrity Partnership/Virality Project (“EIP”),” the red states wrote in asking for a rehearing.
The Supreme Court was already mulling the Biden administration’s motion to stay the lower court decision. The Court extended an administrative stay Friday, giving the justices more time to decide whether to grant the administration’s broader request to put the lower court decision on ice until the Court either declines to hear the case on the merits, or takes it up and decides it.
Red states have perfected the practice of seeking out hyper-activist conservative judges, particularly those appointed by Donald Trump, who can reliably deliver them wins in court. The state of Texas, for example, routinely goes to U.S. District Court Judge Matthew Kacsmaryk with its anti-Biden administration cases, despite the geographic distance of his courtroom in Amarillo from the heart of the state government’s operations in Austin.
As the relationship between these judges and their ideological allies has strengthened, the litigants are growing more comfortable demanding that their entire list of asks be met.
In Alabama, state officials remained intransigent after both a federal panel and the Supreme Court knocked down their maps as illegally gerrymandered. Refusing to redraw the congressional district map as directed by the courts, they handed in to the increasingly heated panel another, very similar racial gerrymander. When the panel angrily rejected it, the officials went to the Supreme Court again, asking the justices to stay the panel’s order and, essentially, rehear the same case again. The officials are reportedly operating on the naked calculation that Justice Brett Kavanaugh can be swayed to their side. The Supreme Court’s silence on that stay request is becoming conspicuous, as both sides had filed their briefs by mid-last week.
In the social media case, the red state officials are demonstrating for similar litigants that not only will conservative judges not punish such openly manipulative behavior, they’ll actively reward it.
Read the Fifth Circuit panel’s order here: