Censorship emergency declared

In “Walk away, Joe,” I tried to provide legal background on likely next steps in Missouri v. Biden — the most important free speech case to come down the pike since I don’t know when. Western District of Louisiana Judge Terry Doughty has entered a preliminary injunction limiting the communications of the federal censorship regime — President Biden and designated officials/agencies — with social media companies. Judge Doughty’s preliminary injunction is posted online here.

As predicted, Judge Doughty has denied the government’s motion for a stay of the injunction pending the appeal filed in the Fifth Circuit. Judge Doughty filed a 13-page memorandum supporting his denial here. Among other things, Judge Doughty points out at page 8 that the injunction “only prohibits something the Defendants have no legal right to do—contacting social media companies for the purpose of urging, encouraging, pressuring, or inducing in any manner, the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms.”

As predicted, the government has filed a motion for stay pending appeal in the Fifth Circuit claiming an “emergency” under Fifth Circuit Rule 27.3. The government’s motion is posted online here. Under the rule, parties are not to file motions seeking emergency relief “unless there is an emergency sufficient to justify disruption of the normal appellate process.” Further, the nature of the emergency is to be specified.

I don’t see any such “emergency” made out in the government’s motion — the closest the argument comes on this point is at pages 20-21. The government’s argument on this point, if that is what it is, is cursory and formulaic. Rather, it seems to me, the motion as a whole simply foreshadows the substantive argument the government will make to the court in due course on appeal.

Accordingly, unless the motions panel were to deny the stay based on the absence of an “emergency,” the court’s ruling on the stay could in theory be a predictor of the outcome of the appeal. As I read the Fifth Circuit internal operating procedures, however, the stay motion will be referred to a standing motions panel of the court separate from the three-judge panel that will hear the appeal. We will simply have to stay tuned in to each stage of this critically important case.

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